BANCROFT 
LIBRARY; 

<> 

THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


THE 


TERRY-BRODERICK   DUEL 


WRITTEN   BY 


HON.  JOHN    CURREY, 


FORMERLY    CHIEF   JUSTICE   OF   THE   SUPREME   COURT   OF   CALIFORNIA. 


ALSO   THE 


O  I*  ATI  O  N 


OF 


COLONEL  EDWARD  D.  BAKER 


OVER    THE    DEAD    BODY   OF    DAVID    C.  BRODERICK, 


SEPTEMBER  18,  1859. 


WASHINGTON,  D.    O.  : 

GIBSON  BROS.,  PKINTEHS  AND  BOOKBINDEBS. 
1896. 


THE 


TERRY-BRODERICK    DUEL. 


WRITTEN    BY 


HON.  JOHN    (3URREY. 

FORMERLY    CHIEF    JUSTICE    OF    THE    SUPREME    COURT    OF    CALIFORNIA. 


ALSO    THE 


O  R  ATI  O  N 

OF 

COLONEL  EDWARD  D.  BAKER 

OVER    THE    DEAD    BODY    OF    DAVID    C.  BRODERICK, 
SEPTEMBER  18,  1859. 


WASHINGTON,  D.  C.  I 

GIBSON  BROS.,  PRINTERS  AND  BOOKBINDERS. 
1896. 


X 


4° 


BANCROFT 

LIBRARY 


THE  TERRY-BRODERICK  DUEL. 


It  is  now  more  than  thirty  years  since  the  world-renowned 
duel  between  David  S.  Terry  and  David  C.  Broderick 
transpired,  in  which  the  latter  fell  mortally  wounded.  Be 
fore  proceeding  with  a  detailed  account  of  this  terrible 
tragedy  and  the  immediate  circumstances  and  causes  which 
led  up  to  it,  it  is  proper  to  notice  the  condition  of  society 
in  California  in  the  earlier  days  and  the  political  state  of 
affairs  during  the  first  decade  of  the  state's  history. 

During  the  year  1849,  and  for  a  few  years  thereafter, 
there  was  a  large  immigration  to  California  from  nearly  all 
the  states  of  the  Union.  They  were  mostly  young  men 
under  forty  years  of  age,  who  came  seeking  fortunes  in  this 
new  and  promising  land.  Many  were  ambitious  for  political 
distinction  and  regarded  California  as  a  promising  field 
for  political  enterprise.  Of  the  latter  class,  the  southern 
states  furnished  the  larger  proportion,  and  they  came 
fully  impressed  with  the  belief  that  they  were  the  superiors 
of  the  northern  men  in  the  qualities  of  gentlemen  born  to 
rule,  and  therefore  the  party  leaders  and  directors  of  politi 
cal  affairs  were  to  be  found  mainly  in  the  ranks  of  these 
southern  gentlemen,  some  of  whom  before  coming  to  Cali 
fornia  had  held  public  positions  of  honor.  They  believed  in 
slavery  as  a  beneficent  institution,  and  for  the  most  part  re 
garded  the  "Code  of  Honor"  as  an  appropriate  means  for 
the  settlement  of  personal  grievances.  They  considered  a 
southern  man  greatly  superior  to  one  of  northern  birth  and 
education,  in  prowess  and  courage  and  in  the  skilful  use  of 
deadly  weapons,  and  consequently  there  were  many  duels,  first 
and  last,  in  a  considerable  number  of  which  a  northern  man  was 


one  of  the  combatants,  who,  notwithstanding  his  northern 
origin  and  education,  manifested  a  courage  and  skill  which 
more  than  astonished  his  hot-headed  adversary.  The  ex 
perience  of  a  few  years  taught  this  presuming  class  of 
southern  young  men  that  latitude  and  longitude  were  not 
safe  criteria  for  the  determination  of  courage  and  skill. 
They  soon  learned  that  whether  born  and  reared  in  the 
highlands  of  the  North  or  on  the  plantations  of  the  South, 
"  A  man's  a  man  for  a'  that." 

It  is  just  to  say  of  the  immigration  from  the  south,  that 
many  were  gentlemen  of  high  educational  attainments  and  of 
refined  and  cultured  manners.  In  social  life  they  were  at 
tractive  and  genial  companions,  considerate  of  the  opinions 
of  others.  This  class  of  gentlemen  was  quite  unlike  the  pre 
tentious  and  boasting  middle-rank  and  low-grade  chivalry, 
who  were  wont  to  carry  upon  their  persons  pistols  and 
knives,  with  which,  for  even  slight  affronts,  they  professed 
themselves  disposed  "  to  blow  the  top  of  your  head  off." 

Mr.  Broderick  came  to  California  from  New  York  early  in 
1849  and  took  up  his  residence  in  San  Francisco.  He  was 
ambitious  and  inclined  to  political  life.  He  was  a  stone 
cutter  by  trade,  which  he  followed  as  his  vocation  during 
his  early  manhood.  In  his  habits  he  was  not  prone  to  any 
of  the  popular  vices  of  the  day.  In  these  respects  he  main 
tained  his  integrity  during  all  his  residence  in  California. 
He  was  a  man  of  strong  natural  ability,  and  possessed  an 
indomitable  will  and  the  power  of  drawing  men  to  him  as  a 
leader.  He  was  elected  to  the  Senate  of  the  first  legislature 
of  California,  and  during  its  second  session  was  the  presiding 
officer  of  the  body  of  which  he  was  a  member,  as  the  Lieu 
tenant  Governor  had  succeeded  to  the  office  of  Governor, 
made  vacant  by  the  resignation  of  Peter  H,  Burnett,  who 
had  served  as  Governor  only  half  of  the  term  for  which  he 
was  elected. 

Dr.  William  M.  Gwiu,  who  came  to  California  in  1849, 
was  a  southern  man  by  birth,  residence,  and  education.  His 


5 

sympathies  were  with  the  people  of  his  native  south,  and 
with  their  "  peculiar  institution  "  of  slavery.  He  was  a  man 
of  vigorous  intellectual  force,  and  was  in  the  early  days  of 
California  the  leader  of  his  party.  The  first  legislature  of 
the  state  elected  him  an  United  States  Senator,  and  in  cast 
ing  lots  for  terms,  he  drew  that  which  expired  in  March, 
1855.  His  position  as  a  Senator  added  to  his  strength  as 
leader  of  the  Democratic  party.  His  influence  was  exercised 
for  the  advancement  of  his  friends  to  the  offices  of  federal 
patronage,  and,  in  the  disposition  of  them,  men  of  southern 
birth  and  education,  all  other  things  being  equal,  were  pre 
ferred.  To  be  eligible  to  office,  either  federal  or  state,  it 
was  essential,  as  a  general  rule,  to  be  sound  on  the  question 
of  slavery,  according  to  the  standards  of  Senator  Gwin  and 
his  southern  allies.  This  was  carried  to  such  an  extent 
during  the  administrations  of  Pierce  and  Buchanan,  that  the 
Custom  House  at  San  Francisco  came  to  be  known  as 
the  "  Virginia  Poor  House." 

Mr.  Broderick's  power  as  a  leader  steadily  increased.  His 
following  comprised  people  from  every  part  of  the  Union, 
though  its  principal  strength  was  from  the  states  north  of 
"  Mason  and  Dixon's  line."  As  his  power  grew,  the  oppo 
sition  of  Senator  Gwin  and  his  southern  followers  and  pro- 
slavery  allies  from  northern  states  increased  and  strengthened 
until  it  became  furious  ;  but  Broderick  was  equal  to  the 
emergency,  and  his  following  grew  stronger  and  stronger  and 
as  earnest  and  vehement  as  that  of  its  adversaries. 

In  the  summer  of  1853,  at  the  Democratic  state  conven 
tion  held  at  Benicia  for  the  nomination  of  a  state  ticket,  the 
two  factions  of  the  party  measured  swords.  The  southern 
wing,  which  was  called  the  Chivalry,  was  led  by  several  of 
Senator  Gwin's  lieutenants,  scarcely  inferior  in  political 
generalship  to  himself.  Broderick  was  there  in  person  and 
conducted  the  fight  against  his  opponents  with  great  adroit 
ness  as  well  as  boldness.  His  ticket  was  nominated,  with 
John  Bigler,  a  native  of  Pennsvlvania,  then  Governor  of  the 


state,  at  its  head.  This  ticket  was  elected,  and  Broderick 
was  then  regarded  by  the  majority  of  the  Democratic  party 
as  its  leader  in  the  state,  though  the  Gwin  or  Chivalry  wing 
yielded  an  unwilling  acquiescence. 

At  the  session  of  the  legislature  assembled  at  Beuicia 
early  in  1854,  Broderick  and  some  of  his  friends  attempted 
to  force  on  the  election  of  a  United  States  Senator  to  suc 
ceed  Dr.  Gwin,  whose  term  was  to  expire  in  March,  1855- 
This  movement  was  regarded  by  many  of  Broderick's  friends, 
and  others,  as  an  injudicious  and  reprehensible  step,  as  it 
was  an  attempt  to  do  by  that  legislature  a  duty  which 
properly  appertained  to  the  legislature  to  be  chosen  at  the 
next  election.  The  attempt  failed. 

The  legislature  which  assembled  at  Sacramento,  the  new 
capital  of  the  state,  in  1855,  made  an  ineffectual  effort  to 
elect  a  Senator.  No  one  candidate  could  obtain  a  majority. 
The  same  thing  occurred  again  at  the  legislature  which  con 
vened  in  1856.  This  was  the  "  Know-Nothing  "  legislature, 
composed  of  Democrats,  and  Whigs  whose  organization  had 
at  that  time  become  virtually  extinct. 

The  Know-Nothing  party  grew  and  became  dominant  in 
the  state  in  1855.  It  was  composed  largely  of  the  Chivalry 
branch  of  the  Democratic  party,  and  Whigs  who  had  become 
scattered  for  want  of  a  fold  in  which  to  gather  them  in  united 
force. 

By  means  of  the  Know-Nothing  organization,  the  oppor 
tunity  came  to  the  Chivalry  to  overthrow  Broderick  and 
his  close  followers.  David  S.  Terry,  a  resident  of  Stockton, 
was  a  strong  pro-slavery  Democrat.  He  "had  resided  in 
Texas  from  his  early  boyhood  until  he  came  to  California  in 
1849.  He  abandoned  his  party  and  became  a  leading  Kuow- 
Nothing,  and  was  nominated  at  its  state  convention  in  1855 
for  Justice  of  the  Supreme  Court,  to  till  out  the  term  of 
Alexander  Wells,  then  deceased.  He  and  all  others  on  his 
ticket  were  elected,  and  he  entered  upon  his  office  on  the 
first  of  January,  1856. 


The  Know-Nothing  party  was  short-lived,  for  in  the  fall 
of  1856  the  Democratic  party,  then  under  the  leadership  of 
Broderick,  gained  the  ascendency,  and  elected  a  legislature 
strongly  Democratic.  At  its  session  in  January,  1857, 
Broderick  was  elected  United  States  Senator  for  the  term  to 
commence  on  the  4th  of  March  of  that  year.  There  was 
also  the  partly  unexpired  term,  which  commenced  on  the  4th 
of  March,  1855,  to  be  filled,  and  Dr.  Gwin  and  Milton  S. 
Latham  were  aspirants  for  the  position.  The  struggle  be 
tween  them  for  it  waxed  strong  and  bitter.  Each  sought  the 
aid  and  influence  of  Broderick,  who  at  the  time  had  them  at 
his  feet.  Broderick  preferred  Dr.  Gwin,  and  he  was  elected. 
He  humbly  acknowledged  his  indebtedness  to  Broderick  for 
his  timely  and  effectual  assistance.  This  was  done  in  a  com 
munication  over  his  own  name,  addressed  to  the  people  of 
California,  after  he  was  elected. 

While  this  Senatorial  struggle  was  in  progress,  there  was 
going  on  in  the  territory  of  Kansas  one  even  more  vital  to 
the  cause  of  Civil  Liberty.  It  was  a  contest  between  the 
free-state  men  of  that  territory  and  the  pro-slavery  people 
of  Missouri  and  other  southern  states,  who  had  gone  there, 
some  of  them  with  their  slaves,  believing  that  this  species 
of  property,  according  to  the  doctrine  of  the  Dred  Scott  de 
cision,  stood  protected  by  the  national  constitution,  and 
was  as  secure  in  their  possession  as  any  other  kind  of 
property,  so  long  as  Kansas  might  remain  a  territorial  gov 
ernment,  and  always,  unless  the  people,  in  their  sovereign 
capacity,  should,  in  the  adoption  of  a  state  constitution, 
declare  slavery  to  be  unlawful  within  its  borders. 

The  people  of  California  had  not  then  become  generally 
interested  in  the  free-state  and  pro-slavery  contest  of  Kan 
sas.  In  the  latter  part  of  the  year,  a  convention  of  pro- 
slavery  delegates  met  at  the  town  of  Lecompton,  in  Kansas, 
for  the  purpose  of  framing  a  constitution  for  the  prospective 
state,  a  work  which  the  convention  performed,  taking  care 
to  provide  for  the  establishment  of  slavery  as  a  permanent 


8 

institution  of  the  state.  This  provision  of  the  proposed 
constitution  was  alone  submitted  to  the  electors  of  the  terri 
tory  for  their  adoption  or  rejection ;  but  by  another  pro 
vision  of  the  same  instrument,  the  owners  of  slaves  then  in 
the  territory  were  confirmed  in  their  right  in  and  to  them, 
in  the  state  of  Kansas,  even  though  the  provision  submitted 
might  be  rejected.  The  free-state  men  demanded  a  sub 
mission  of  the  entire  instrument,  to  be  passed  on  by  the 
electors  of  the  territory,  which  being  denied,  they  refused  to 
participate  in  the  election.  The  result  was  that  the  ques 
tion  submitted  was  adopted  by  a  large  majority  of  a  very 
small  vote  cast. 

President  Buchanan  had  promised  the  people  that  any 
constitution  which  might  be  formed  for  Kansas  as  a  state 
should  be  submitted  to  them  for  their  adoption  or  rejection  ; 
but  upon  the  reception  of  the  Lecompton  constitution  he 
repudiated  his  pledge  made  to  the  people,  and  on  the  2d 
of  February,  1858,  transmitted  the  instrument  to  Congress, 
accompanied  by  a  special  message  urging  the  speedy  ad 
mission  of  Kansas  as  a  state  of  the  Union  under  the  Le 
compton  constitution,  although,  as  he  in  effect  expressed  it, 
the  instrument  had  not  been  fully  submitted  to  the  people 
for  their  adoption  or  rejection.  Against  admission  under 
the  proposed  constitution,  there  arose  in  both  houses  of 
Congress  a  strong  opposition,  led  by  Senator  Douglas,  of 
Illinois,  with  whom  was  Senator  Broderick,  who  was  an 
uncompromising  opponent  of  the  measure.  Senator  Gwin 
exerted  all  his  strength  in  support  of  it,  and  from  that 
time  the  California  Senators  became  bitter  enemies.  The 
immediate  result  was  that  Broderick  fell  under  the  ban 
of  the  administration,  while  Dr.  Gwin  came  into  increased 
favor  with  the  President,  whose  sympathies  were  more  than 
cordial  with  those  in  Congress  who  were  laboring  to  make 
Kansas  a  slave  state.  Thenceforth  the  federal  patronage 
for  California  was  administered  by  Senator  Gwin. 

While  the  question  of  the  admission  of  Kansas  under  the 


Lecompton  constitution  was  convulsing  Congress,  the  whole 
country  became  intensely  agitated  on  the  subject,  and  the 
people  of  California  soon  arrayed  themselves  on  the  one  side 
or  the  other  of  the  disturbing  question.  Those  who  were 
strongly  pro-slavery  were  first  in  the  arena  of  the  conflict ; 
those  opposed  to  the  extension  of  slavery  were  not  much 
behind,  and  the  indifferent  waited  to  see  the  turn  of  events 
before  choosing  sides.  The  Republicans,  then  a  party  of 
nascent  growth  in  California,  were  to  a  man  opposed  to  the 
Lecompton  fraud,  and  the  friends  of  Senator  Broderick  were 
for  the  most  part  equally  so,  but  fully  three-fifths  of  the 
people  of  the  state  were  either  in  favor  of  the  extension  of 
slavery,  or  indifferent  respecting  the  question. 

In  the  summer  of  1858  the  Democratic  party  met  at  Sac 
ramento  and  divided  forces  on  the  question  of  the  admission 
of  Kansas  as  a  state  under  the  Lecompton  constitution,  and 
questions  cognate  to  the  subject.  The  party  from  that  time 
became  two-winged,  and  each  held  its  convention  and  nom 
inated  candidates  for  Justice  of  the  Supreme  Court  and 
State  Controller,  the  only  two  offices  to  be  filled  by  the 
election  of  that  year. 

The  administration  wing  was  denominated  the  "  Lecomp 
ton  "  party,  and  the  opposition  wing  was  called  the  "  anti- 
Lecompton "  party ;  some  called  it  the  "  Douglas  "  party. 
With  the  anti-Lecompton  wing  of  the  Democracy,  the  Re 
publicans  united  on  the  candidate  for  Justice  of  the  Supreme 
Court ;  but,  notwithstanding  this,  the  Lecompton  wing  carried 
the  election  by  a  fair  though  not  large  majority. 

The  California  Senators  were  in  their  places  during  the 
winter  of  1858-'9,  and  each  devoted  his  influence  on  the  side 
of  the  question  he  espoused. 

The  leaders  of  the  Lecompton  party  in  California  were 
unscrupulous  as  to  the  means  which  might  be  employed  to 
make  Kansas  a  slave  state.  They  were  for  slavery,  and  hated 
those  who  boldly  confronted  them.  They  hated  Broderick, 
for  his  part  in  the  struggle,  with  malignant  personal  hatred, 


10 

and  no  one  of  these  pro-slavery  leaders  was  more  bitterly 
hostile  to  Broderick  than  was  Terry,  who  had  declared  him 
self  not  only  the  friend  of  slavery  extension,  but  also  of  re 
opening  the  African  slave  trade. 

In  June,  1859,  the  two  wings  of  the  Democracy  met  in 
state  conventions  at  Sacramento  to  place  in  nomination  each 
a  full  ticket  for  state  officers.  The  anti-Lecompton  wing 
was  the  first  to  make  its  nominations.  At  that  time  the 
California  Senators  had  returned  home,  and  were  preparing 
to  enter  upon  the  approaching  campaign.  Judge  Terry  was 
placed  before  the  Lecompton  convention  for  the  office  of 
Justice  of  the  Supreme  Court,  as  his  own  successor,  but  he 
failed  to  receive  the  nomination.  It  fell  to  the  lot  of  one  of 
his  competitors.  The  nominations  having  been  completed, 
there  was  held  in  the  hall  or  place  of  the  convention,  on  the 
evening  of  the  24th  of  June,  a  meeting  to  ratify  the  nomina 
tions  made.  At  that  meeting  Terry  was  called  upon  to 
speak,  and  he  responded  in  a  vehement  speech,  in  which 
he  inveighed  coarsely  and  insultingly  against  the  anti- 
Lecompton  party,  of  which  Broderick  was  a  member  and 
the  leader  in  the  state,  and  against  Broderick  personally. 
The  particularly  offensive  part  of  his  speech  is  here  given. 
He  said : 

"  Who  have  we  opposed  to  us  ?  A  party  based  on  no  prin 
ciples  except  the  abusing  of  one  section  of  the  countrv  and 
the  aggrandizement  of  another ;  a  party  which  has  no  exist 
ence  in  fifteen  states  of  the  confederacy  ;  a  party  whose 
principles  never  can  prevail  among  freemen  who  love  jus 
tice  and  are  willing  to  do  justice.  "What  other?  A  miser 
able  remnant  of  a  faction,  sailing  under  false  colors,  trying 
to  obtain  votes  under  false  pretences.  They  have  no  dis 
tinction  they  are  entitled  to.  They  are  the  followers  of  one 
man,  the  personal  chattels  of  a  single  individual,  whom  they 
are  ashamed  of.  They  belong  heart  and  soul,  body  and 
breeches,  to  David  C.  Broderick.  They  are  yet  ashamed  to 
acknowledge  their  master,  and  are  calling  themselves,  for- 


11 

sooth,  Douglas  Democrats,  when*  it  is  known — well  known 
to  them  as  to  us — that  the  gallant  Senator  from  Illinois, 
whose  voice  has  always  been  heard  in  the  advocacy  of  Dem 
ocratic  principles,  has  no  affiliation  with  them,  no  feeling  in 
common  with  them. 

"Perhaps,  Mr.  President  and  gentlemen,  I  am  mistaken  in 
denying  their  right  to  claim  Douglas  as  their  leader  ;  per 
haps  they  do  sail  under  the  flag  of  a  Douglas  ;  but  it  is  the 
banner  of  the  black  Douglas,  whose  name  is  Frederick,  not 
Stephen." 

These  were  the  words  of  the. Chief  Justice  of  the  Supreme 
Court  of  the  state,  the  dignity  of  whose  position,  his  friends 
have  claimed,  weighed  heavily  upon  him. 

The  speech  was  reported  in  the  "  Sacramento  Union,"  a 
newspaper  of  wide  circulation,  on  the  morning  of  the  follow 
ing  day,  from  which  it  appeared  that  it  was  received  by 
the  large  audience  with  great  applause  and  vociferous 
cheering. 

This  speech  was  the  first  immediate,  overt  offence  which 
led  to  the  Terry-Broderick  duel, — a  fact  which  cannot  be 
gainsaid  by  any  one  capable  of  drawing  just  conclusions 
from  given  causes,  though  Terry's  friends  and  admirers  have 
carefully  avoided  giving  any  importance  to  it  as  an  offence, 
one  of  whom  has  gone  so  far  as  to  justify  and  excuse  it,  as 
clearly  within  the  pale  of  legitimate  debate,  and  in  no  sense 
censurable  as  a  reflection  against  Broderick. 

On  the  morning  of  the  26th  of  June,  Broderick,  while  at 
the  breakfast  table  of  the  International  Hotel,  in  San  Fran 
cisco,  read  the  speech  of  Terry  as  it  appeared  in  the 
"  Union  "  of  the  25th.  He  was  disturbed  and  angered,  and 
spoke  of  it  to  a  friend  next  him  at  the  table,  about  which 
there  were  seated  a  few  other  persons.  He  remarked  that 
while  Terry  was  incarcerated  by  the  Vigilance  Committee, 
he  had  paid  two  hundred  dollars  a  week  to  support  a  news 
paper  to  defend  him,  and,  continuing,  said  :  "  I  have  said  I 


12 

considered  him  the  only  honest  man  on  the  Supreme  Bench, 
but  I  now  take  it  ;ill  back." 

Mr.  D.  W.  Perley,  a  former  law  partner  of  Terry,  hap 
pened  to  be  at  the  table,  and  resented  the  words  of  Broder- 
ick,  who  cut  him  short  with  some  curt  remark  which  Perley 
deemed  offensive  to  himself.  Perley  then  published  his 
version  of  what  Broderick  said,  which  he  endeavored  after 
wards  to  have  some  of  those  present  corroborate,  but  met 
with  a  denial  by  them  of  the  truth  of  his  story.  Perley  him 
self  challenged  Broderick  to  a  duel,  which  the  latter  declined, 
saying,  at  the  time,  that  he  would  not  allow  himself  to  be 
drawn  into  an  affair  of  the  kind  while  the  campaign  then 
inaugurated  should  continue,  in  which  it  was  his  purpose  to 
take  a  part. 

Both  Mr.  Broderick  and  Dr.  Gwin  took  the  stump,  and 
the  war  of  crimination  and  recrimination  between  them  was 
bitter  in  the  extreme,  and  it  was  so  to  a  considerable  degree 
between  the  leaders  of  the  two  wings  of  the  Democratic 
party,  though  there  were  exceptions  to  this  mode  of  political 
warfare. 

The  election  was  on  the  7th  of  September,  at  which  the 
Lecompton  party  won  a  decisive  victory.  Throughout  the 
campaign  the  air  was  full  of  imprecations  and  threats  against 
Broderick.  It  was  believed  by  his  enemies  that  his  death 
was  a  political  necessity,  and  that  it  must  be  accomplished, 
if  not  by  the  first  duel,  then  by  another  or  others  to  follow. 
It  is  believed  that  Broderick  himself  was  conscious  of  the 
dangers  that  awaited  him,  and  well  understood  the  reasons 
for  the  malignity  of  his  enemies,  for,  while  languishing  on 
his  dying  bed,  he  is  reported  to  have  said  :  "  They  have 
killed  me  because  I  was  opposed  to  the  extension  of  slavery, 
and  a  corrupt  administration." 

Col.  Edward  D.  Baker  was  with  Mr.  Broderick  much  of 
the  time  during  his  extreme  suffering,  and  probably  heard 
these  words  as  they  were  uttered  ;  for,  in  his  great  and  grand 
funeral  oration  over  the  dead  body  of  his  fallen  friend,  he 


13 

repeated  the  dying  words  of  Mr.  Broderick,  and  as  he  con 
tinued  he  said :  "  Let  no  man  suppose  that  the  death  of 
the  eminent  citizen  of  whom  I  speak  was  caused  by  any 
other  reason  than  that  to  which  his  own  words  assigned  it. 
It  had  been  long  foreshadowed.  It  was  predicted  by  his 
friends.  It  was  threatened  by  his  enemies.  It  was  the 
consequence  of  intense  hatred.  It  was  a  political  ne 
cessity,  poorly  veiled  beneath  the  guise  of  a  private 
quarrel." 

While  hope  was  entertained  that  Mr.  Broderick  might 
recover,  a  correspondent  of  the  "  Alta  California "  news 
paper,  under  date  of  September  15th,  after  saying  he  had 
always  been  his  bitter  enemy,  continuing,  said :  "  I  have 
feelings  in  common  with  mankind,  and  I  disapprove  of  this 
man's  being  hunted  like  a  dog.  If  he  survives,  other  duels 
stare  him  in  the  face."  And  then  he  appealed  to  the  good 
people  of  the  community  to  join  him  in  a  protest  "positively 
forbidding  him  to  accept  any  further  challenges,  which  will 
surely  come  should  he  be  raised  from  his  bed  of  death." 
These  utterances  of  the  funeral  orator  and  the  "Alta's"  cor 
respondent  were  but  the  general  expressions  of  the  people 
throughout  the  land,  who  believed  Mr.  Broderick  had  fallen 
the  victim  of  cruel  malice — a  sacrifice  to  the  political  neces 
sities  of  the  time. 

While  the  campaign  was  in  its  furious  progress,  some  of 
Broderick's  most  pronounced  adversaries  said  he  must  be 
killed,  and  others,  more  prudent  in  speech,  ventured  the 
prediction  that  he  would  not  long  survive  the  day  of  the 
election,  and  to  this  end  they  looked  to  Terry  as  the  person 
best  suited  to  do  effective  work.  He.  they  supposed,  had 
a  pretext,  if  not  a  sufficient  cause,  to  call  upon  Broder 
ick  for  reparation  on  account  of  what  he  had  said  at  the 
breakfast  table. 

This  was  the  condition  of  things  until  the  election  was 
over,  whereupon  Terry,  accompanied  by  his  friends  Dr. 
Ash  and  Dr.  Aylette,  on  the  8th  of  September,  the  day  after 


14 

the  election,  proceeded  by  stage  from  Stockton  to  Oakland, 
having  with  him  the  pistols  which  were  afterwards  used  in 
the  duel.  There  they  were  placed  in  charge  of  a  Texas  friend 
of  Terry,  and  thence  they  were  taken  to  the  field  of  the  con 
flict  which  followed. 

On  the  day  of  his  arrival  at  Oakland,  Terry  addressed  to 
Broderick,  from  that  place,  a  letter,  in  which  he  said : 

"Some  two  months  ago,  at  the  public  table  of  the  Inter 
national  Hotel  in  San  Francisco,  you  saw  fit  to  indulge  in 
certain  remarks  concerning  me,  which  were  offensive  in  their 
nature  *  *  "".  I  now  take  the  earliest  opportunity  to 
require  of  you  a  retraction  of  those  remarks." 

To  this  letter  Broderick  promptly  made  answer,  saying : 
"  Your  note  of  September  8th  reached  me  through  the  hands 
of  Calhoun  Benham,  Esq.  The  remarks  made  by  me  in  the 
conversation  referred  to  may  be  the  subject  of  future  mis 
representation,  and,  for  obvious  reasons,  I  have  to  desire 
you  to  state  what  the  remarks  were  that  you  designate  in 
your  note  as  offensive,  and  of  which  you  require  of  me  a  re 
traction." 

On  the  9th  of  September  Terry  answered  Broderick's  let 
ter,  and,  complying  with  his  request,  he  said  :  "  In  reply  to 
your  note  of  this  date,  I  have  to  say  that  the  offensive  re 
marks  which  I  alluded  to  in  my  communication  of  yesterday 
are  as  follows  :  '  I  have  heretofore  considered  and  spoken  of 
him  (myself)  as  the  only  honest  man  on  the  Supreme  Court 
Bench,  but  I  now  take  it  all  back.'  Thus  by  implication  re 
flecting  on  my  personal  and  official  integrity.  This  is  the 
substance  of  your  remarks  as  reported  to  me.  The  precise 
terms,  however,  in  which  the  implication  was  made  is  not  im 
portant  to  the  question.  You  yourself  can  best  remember 
the  terms  in  which  you  spoke  of  me  on  the  occasion  re 
ferred  to.  What  I  require  is  the  retraction  of  any  words 
which  were  used,  calculated  to  reflect  on  my  character  as  an 
officer  or  a  gentleman." 

On   the   evening  of   the  same  day,  Broderick  replied  to 


15 

Terry's  second  letter,  acknowledging  its  receipt,  and  then 
said  :  "  The  remarks  used  by  me  were  occasioned  by  cer 
tain  offensive  allusions  of  yours  concerning  me,  made  in  the 
convention  at  Sacramento,  and  reported  in  the  '  Union  '  of 
June  25th.  Upon  the  topic  alluded  to  in  your  note  of  this 
date,  my  language,  so  far  as  my  memory  serves  me,  was  as 
follows :  '  During  Judge  Terry's  incarceration  by  the  Vigi 
lance  Committee,  I  paid  two  hundred  dollars  a  week  to  sup 
port  a  newspaper  in  his  (your)  defence.  I  have  also  stated 
heretofore  that  I  consider  him  (Judge  Terry)  the  only  honest 
man  on  the  Supreme  Court  Bench,  but  I  now  take  it  all 
back.'  You  are  the  best  judge  as  to  whether  this  language 
affords  good  ground  for  offence." 

To  this  second  letter  of  Broderick,  Terry,  on  September 
10th,  answered  as  follows  : 

"  Some  months  ago  you  used  language  concerning  me, 
offensive  in  its  nature.  I  waited  the  lapse  of  a  period  of 
time,  fixed  by  yourself,  before  I  asked  reparation  therefor  at 
your  hands.  You  replied,  asking  for  a  specification  of  the 
language  used  which  I  regarded  as  offensive.  In  another 
letter  I  gave  the  required  specification  and  reiterated  my  de 
mand  for  retraction.  To  this  last  letter  you  reply  acknowl 
edging  the  use  of  the  offensive  language  imputed  to  you, 
and  not  making  the  retraction  required.  This  course  on 
your  part  leaves  me  no  alternative  but  to  demand  the  satis 
faction  usual  among  gentlemen,  which  I  accordingly  do. 
Mr.  Benham  will  make  the  necessary  arrangements." 

In  reply  to  this  letter  tendering  a  challenge,  Broderick 
acknowledged  its  receipt,  and  then  said :  "  In  response  to 
the  same,  I  will  refer  you  to  my  friend  Hon.  J.  C.  McKibben, 
who  will  make  the  necessary  arrangements  demanded  in 
your  letter." 

Here  ended  the  epistolary  correspondence,  the  substance 
of  which  is  herein  set  forth,  as  found  at  length  in  the  volume 
of  Maj.  Ben.  C.  Truman,  entitled  "  The  Field  of  Honor,"  and 


16 

in  the  work  of  Mr.  James  O'Meara,  entitled  "  Broderick  and 
Gwin." 

It  is  here  to  be  noticed  that  the  parties  agreed  as  to  the 
language  used  by  Broderick  respecting  Terry,  which  he 
regarded  as  offensive  in  its  nature.  It  is  also  to  be  noticed 
that  the  latter  did  not  credit  the  story  of  his  friend  Perley, 
as  to  what  Broderick  had  said  at  the  breakfast  table.  Yet 
Mr.  O'Meara,  after  all  this,  adopts  Perley 's  version  of  what 
was  said  there,  and  deduces  therefrom  his  conclusions 
that  Broderick's  remarks  were  extremely  harsh  and  offen 
sive. 

Terrv's  friends  have  always  carefully  ignored  the  fact,  that 
his  speech  before  the  convention  of  his  party  was  to  be 
considered  as  forming  any  part  of  the  coutrovers}^  They 
assume  that  the  remarks  made  by  Broderick  were  the  first 
offence,  and  have  given  to  them  an  interpretation  which  is 
strained  to  mean  that  Broderick's  words  were  an  imputation 
against  the  judicial  integrity  of  Judge  Terry,  which  could 
be  atoned  for  only  by  abject  and  craven  humiliation,  or  by 
blood. 

Mr.  O'Meara  says,  in  the  25th  chapter  of  his  book,  that 
"  the  provocation  which  he  (Broderick)  had  from  Terry's 
remarks  in  the  Lecompton  convention  was  not  of  a  character 
to  justify  a  personal  replication.  Terry's  language  was 
directed  mainly  against  the  party  of  which  Broderick  was 
the  acknowledged  leader,  and  incidentally  his  relation  to 
that  party  was  mentioned,  but  it  was  simply  and  exclusively 
political ;  public  mention  and  characterization,  clearly  within 
the  limits  of  ordinary  and  fair  debate  or  allusion,  and  with 
out  the  ingredient  or  tinge  of  personality.  At  worst  it  in 
no  wise  reflected  upon  the  character  or  upon  the  political 
standing  of  Mr.  Broderick,  in  point  of  integrity  or  honor. 
But  Mr.  Broderick's  language  concerning  Judge  Terry  was 
very  harsh — very  offensive  in  a  personal  sense ;  and  in 
respect  to  the  exalted  position  he  occupied  as  Chief  Justice 
of  the  Supreme  Court  of  the  state,  it  was  intolerable  to  one 


17 

who,  in  such  position,  was  inspired  with  a  just  sense  of  the 
great  dignity  of  the  station  itself,  and  a  proper  appreciation 
of  the  high  duty  which  he  owed  to  his  associates  on  the 
bench,  and  the  spirit  which  was  due  in  upholding  and  vin 
dicating  the  unsullied  majesty  of  the  law  in  its  loftiest  temple 
of  the  state." 

This  grandiloquent  exaltation  of  the  Chief  Justice,  who, 
disturbed  in  his  dignified  repose,  went  forth,  in  kindled 
wrath,  to  vindicate  the  unsullied  majesty  of  the  law  in  its 
loftiest  temple,  bates  the  breath.  Were  it  not  that  this 
admiring  disciple  of  the  angered  Chief  Justice  is  known  to 
be  as  deeply  devoted  to  his  hero  as  was  Crito  to  his  revered 
Socrates,  it  might  be  well  suspected  that  his  laudations 
were  but  the  ebullitions  of  caustic  sarcasm  and  grim 
irony. 

This  specimen  passage  from  the  work  of  Mr.  O'Meara  is 
but  a  sample  of  the  labored  efforts,  from  the  beginning,  to 
place  Terry  in  the  attitude  of  the  righteous  defender  of 
personal  and  judicial  honor,  against  the  assault  of  one  who 
had  the  temerity  to  assail,  yet  not  the  manliness  to  make 
reparation  for  his  wrong.  These  efforts  have  consisted  in 
the  expressio  falsi  persisted  in,  and  the  supressio  veri  care 
fully  observed,  so  that  the  impression  has  gained  ground,  to 
some  extent,  that  Broderick  was  the  first  offender,  and,  as 
such,  was  in  honor  bound  to  make  reparation  ;  failing  to  do 
which  when  called  upon,  justly  exposed  him  to  the  challenge 
tendered  him,  and  justly  doomed  him  a  sacrifice  upon  his 
own  altar. 

To  understand  the  merits  of  the  controversy  between  the 
parties,  the  order  of  events  should  be  carefully  observed, 
from  which  it  appears  that  Terry  was  the  first  to  give  offence. 
In  his  speech  quoted,  he  charged  Broderick  and  his  party 
as  being  dishonest,  "  sailing  under  false  colors  and  trying  to 
obtain  votes  under  false  pretences ; "  and,  in  ribald  and 
scornful  terms,  he  denominated  the  anti-Lecompton  wing  of 
the  Democratic*  party  as  the  "  personal  chattels  of  a  single 


18 

individual,  whom  they  were  ashamed  of,"  as  belonging 
"  heart  ami  soul,  body  and  breeches,  to  David  C.  Broderick," 
and  "  yet  ashamed  to  acknowledge  their  master." 

These  were  the  words,  not  of  a  blackguard  in  private  life, 
but  of  the  Chief  Justice  of  the  Supreme  Court  of  the  state. 
They  not  only  applied  to  the  individuals  of  the  party  of 
which  Broderick  was  the  leader,  but  to  him  personally,  in  a 
most  offensive  sense,  as  a  master  of  whom  his  followers 
were  ashamed,  and  as  one  whom  they  contemned  and  de 
spised. 

In  the  correspondence  between  the  parties,  it  appears  that 
Broderick  referred  Terry  to  the  latter's  speech  as  the  cause  or 
occasion  of  his  own  remarks  respecting  him,  and  referred 
him  to  the  record  of  that  speech  in  the  "  Sacramento  Union  " 
of  June  25th,  the  consideration  of  which  Judge  Terry  chose 
to  disregard.  Thus  it  appears  that  the  evidence  touching 
this  branch  of  the  controversy  between  the  friends  of  Terry 
and  the  friends  of  Broderick  is  of  the  nature  of  record 
evidence,  importing  absolute  verity.  Upon  this  evidence  the 
questions  arise  : 

First :  Which  of  the  parties  was  the  first  to  give  offence  ? 

Second :  Which  of  the  parties  was  in  honor  bound  to 
apologize  and  make  reparation  to  the  other  ? 

These  questions  being  answered,  the  ultimate  proposition 
is,  Was  there  any  just  ground  or  excuse  for  the  challenge 
given  by  Terry  to  Broderick,  even  according  to  the  prin 
ciples  of  the  Code  of  Honor,  which  the  advocates  of  that 
system  for  the  settlement  of  personal  quarrels  maintain 
are  in  accord  with  the  principles  of  honor,  justice,  and 
equity  ? 

The  particularly  dramatic,  as  well  as  the  terribly  tragic, 
pail  of  the  affair,  miscalled  an  "  affair  of  honor,"  remains  to 
be  told. 

At  the  time  the  correspondence  between  the  parties  was 
opened,  the  physical  condition  of  Broderick  was  most  un 
favorable  for  the  barbarous  business  upon  which  he  was  called 


19 

to  enter,  and  which  he  accepted.  This  was  owing  to  the  ex 
traordinary  mental  and  physical  strain  to  which  he  had  been 
subjected  in  the  Senate,  and  during  the  political  campaign 
then  recently  closed.  On  the  other  hand,  Terry  seemed  well 
prepared  by  assiduous  training  for  the  work  which  he  had 
had  in  anticipation  for  more  than  two  months. 

Both  were  men  of  great  physical  strength,  and  both  of 
strong  mental  force  ;  but  neither  of  them  was  of  high  educa 
tional  attainments,  nor  of  much  culture.  Broderick  was 
known  as  a  man  of  positive  traits  and  giant  will.  He  was  a 
natural  leader  of  men.  Terry  was  known  as  a  man  of  strong 
prejudices  and  bitter  animosities.  He  believed  in  enforcing 
obedience  to  his  will  by  force  of  arms.  He  was  a  natural 
and  typical  leader  of  the  particular  class  to  which  he  be 
longed.  He  believed  in  the  Code  as  an  appropriate  means 
for  the  settlement  of  private  quarrels.  Broderick  recognized 
its  obligations,  in  deference  to  the  prevailing  sentiment  of 
the  time. 

In  Terry's  first  letter  to  Broderick  he  said  at  its  close  : 
"  This  note  will  be  handed  you  by  my  friend  Calhoun  Ben- 
ham,  Esq.,  who  is  acquainted  with  its  contents  and  will  re 
ceive  your  reply."  Benham  delivered  the  letter  on  the 
evening  of  the  day  of  its  date,  when  Broderick  remarked 
that  he  would  give  it  attention  the  next  day.  Benham  urged 
more  prompt  action,  and  from  that  time  the  correspondence 
proceeded  at  double-quick  speed  until  its  conclusion.  On 
the  part  of  Terry  and  Benham,  the  object  seemed  to  be  to 
keep  Broderick  under  whip  and  spur  until  the  work  in  hand 
should  be  fully  accomplished.  Terry's  letter,  tendering  a 
challenge,  was  delivered  by  Benham  to  Broderrck  about  one 
o'clock  in  the  morning  of  the  10th  of  September.  To  effect 
the  service  of  the  challenge  at  this  dead  hour  of  the  night, 
Benham  waited  on  Broderick's  friends  at  the  Union  Hotel, 
on  Kearney  Street,  opposite  Portsmouth  Square,  in  San 
Francisco.  Broderick  was  then  at  the  house  of  his  friend 
Leonidas  Haskell,  at  Black  Point,  a  full  mile  and  a  half 


20 

;i\\;iv,  whi'iv  In*  had  gone  to  obtain  a  comfortable  rest  for 
the  night.  Benham,  by  persistent  urging,  induced  Broder- 
ick's  polite  and  accommodating  friends  to  have  him  aroused 
from  his  sleep,  for  the  purpose  of  coming  to  the  city  on  busi 
ness  of  urgent  importance.  Broderick  was  accordingly  in 
formed  of  the  necessity  of  his  immediate  appearance  at  the 
place  appointed,  and  came  over  the  hills  to  the  city.  On 
his  way  down  Jackson  Street,  near  Stockton  Street,  he  was 
met  by  Benham,  who  delivered  to  him  Terry's  challenge. 
Broderick  soon  reached  the  hotel  and  there  found  his  friends 
waiting  his  coming.  He  was  vexed  and  annoyed  in  that  they 
had  allowed  him  to  be  disturbed  and  broken  of  his  rest,  of 
which  he  was  sadly  in  need.  By  his  letter  accepting  the 
challenge,  Broderick  stated  the  hour  when  it  was  received 
by  him  to  be  one  o'clock  in  the  morning. 

The  challenge  having  been  given  and  accepted,  a  time  and 
place  were  appointed  for  the  hostile  meeting.  The  12th  of 
September  was  the  day  named.  The  place  designated  was 
in  San  Mateo  County,  near  the  boundary  line  between  that 
county  and  San  Francisco,  not  far  from  Laguna  de  Merced. 
The  principals,  with  their  seconds,  surgeons,  and  friends,  were 
on  the  ground  at  an  early  hour  in  the  morning.  The  Chief 
of  Police  of  San  Francisco,  armed  with -a  warrant,  duly  en 
dorsed  by  a  Magistrate  of  San  Mateo,  appeared  in  due  time 
and  placed  the  principals  under  arrest.  They  appeared  be 
fore  the  Police  Court  on  the  same  day,  and,  being  discharged, 
arranged  for  a  meeting  on  the  following  day.  They  met 
early  in  the  morning  on  the  13th  of  the  same  month,  at  a 
spot  near  the  place  of  their  meeting  the  day  before.  The 
respective  principals' were  accompanied  by  their  seconds, 
surgeons,  and  friends,  and  others  curious  to  witness  the  con 
flict,  amounting  in  all  to  about  seventy. 

Terry's  seconds  were  Calhoun  Benham,  Thomas  Hayes, 
and  Samuel  H.  Brooks.  Broderick's  seconds  were  Joseph 
C.  McKibben,  David  D.  Colton,  and  Leonidas  Haskell.  Terry 
and  his  seconds  brought  with  them  the  "  Jo  Beard  pistols," 


21 

which  at  that  time  were  called  the  "  Aylette  pistols."  At 
the  same  time,  there  appeared  on  the  ground  a  gunsmith 
of  San  Francisco,  with  a  pair  of  duelling  pistols,  his  own 
property. 

The  gunsmith  had  been  employed,  by  the  mutual  agree 
ment  of  the  parties,  as  armorer  for  the  occasion.  Mr. 
O'Meara  and  also  Mr.  Samuel  H.  Brooks,  in  his  account  of 
the  duel,  recently  published  in  a  San  Francisco  newspaper, 
speak  of  "Natchez,"  whose  real  name  was  Andrew  J.  Taylor, 
as  the  armorer  who  was  on  the  ground  of  the  hostile  meet 
ing.  In  this  they  are  both  in  error.  The  armorer's  name 
was  Bernard  Legardo.  At  that  time  Natchez  had  been 
dead  nearly  a  year. 

It  is  not  true,  as  Mr.  O'Meara  says,  that  Broderick's  sec 
onds  brought  with  them  a  pair  of  duelling  pistols.  They  had 
agreed  with  Terry's  seconds  upon  the  armorer,  and  they 
relied  upon  him  for  suitable  duelling  pistols. 

In  the  preliminary  arrangements  of  the  parties,  they  cast 
lots  for  the  choice  of  pistols.  The  choice  fell  to  the  side  of 
Terry,  who  chose  the  "  Aylette  pistols,"  and  his  seconds 
selected  the  one  of  the  pair  which  they  desired  for  his  use, 
and  handed  the  other  to  the  seconds  of  Broderick.  The 
armorer,  Legardo,  examined  them  and  pronounced  them  in 
good  order,  except  that  they  were  too  light  and  delicate  on 
the  triggers,  of  which  fact  he  informed  all  the  seconds,  and 
told  one  of  the  seconds  of  Terry  that  the  one  for  Broderick 
was  lighter  than  the  other.  The  armorer  so  testified  at  the 
Coroner's  inquest  upon  the  dead  body  of  Mr.  Broderick, 
and  he  further  testified  that  the  pistol  for  Broderick's  use 
was  so  delicate  that  it  would  explode  by  a  sudden  jar  or 
jerk.  The  armorer  asked  McKibben  why  he  did  not  force 
on  his  principal  his  (the  armorer's)  pistols,  to  which  McKib 
ben  replied  that  Terry  had  won  the  choice  of  weapons.  The 
armorer  then  loaded  the  pistol  to  be  used  by  Broderick, 
and  Mr.  Brooks  loaded  the  one  selected  for  Terry,  which 
was  delivered  to  him,  and  the  one  for  Broderick  was  deliv- 


22 

ered  to  him.  who,  upon  receiving  it,  anxiously  examined  it, 
turning  it  about,  scrutinizing  it  and  measuring  its  stock  with 
his  hand. 

In  Mr.  Oscar  T.  Shuck's  sketch  of  David  S.  Terry,  in  the 
"  Bench  and  Bar  in  California,"  he  gives  the  statement  of  an 
eye-witness  to  the  bloody  affair,  written  only  a  short  time 
thereafter.  This  eye-witness  said :  "  Mr.  Broderick  seemed 
to  know  the  importance  of  the  issue,  and  seemed  nerved  to 
meet  it.  Up  to  the  time  the  pistol  was  handed  him,  he 
appeared  the  cooler  and  more  collected  of  the  two.  But 
after  examining  the  pistol  he  seemed  to  become  uneasy.  He 
betrayed  nothing  like  lack  of  courage,  but  in  measuring  the 
stock  of  the  pistol  with  the  conformation  of  his  hand,  he 
presented  to  the  observer  an  unsatisfied  appearance.  This 
was  shown  by  more  than  one  movement."  And  the  same  wit 
ness  said  :  "  All  agreed  that  his  personal  bravery  was  patent. 
There  was  no  weakening,  but  there  was  an  anxious  solicitude 
in  his  deportment  that  placed  him  at  a  great  disadvantage." 
Even  after  the  words,  "Gentlemen,  are  you  ready?  "were 
pronounced,  and  Terry  had  responded,  "  Keady,"  Broderick 
spent  several  seconds  in  examining  the  stock  of  his  pistol, 
which  did  not  seem  to  fit  his  hand,  and  then  he  answered, 
"  Ready,"  with  a  nod  to  his  second,  General  Colton,  who  had 
announced  in  the  beginning,  "Gentlemen,  are  you  ready?  " 
and  then  followed  the  words,  "  Fire — one — two,"  in  the 
measured  strokes  of  the  cathedral  clock.  Broderick  fired 
first,  as  the  word  "  one  "  was  pronounced.  Terry's  shot 
followed  at  the  point  of  time  the  word  "  two "  was  com 
menced  utterance.  Broderick's  shot  was  spent  in  the  ground 
some  four  or  five  yards  in  advance  of  him,  in  a  direct  line 
between  him  and  his  adversary.  Terry's  shot  took  effect  in 
Broderick's  right  breast,  producing  a  mortal  wound,  from 
which  he  died  three  days  afterwards. 

Upon  receiving  the  pistol  selected  for  him  and  loaded  for 
use  by  his  friend  Brooks,  Terry  seemed  composed,  resting 
it  upon  his  left  hand  as  he  held  it  with  the  other.  He  ex- 


23 

hibited  no  concern  as  to  its  stock,  formation,  or  shooting 
qualities.  Until  it  was  definitively  settled  that  he  had 
secured  for  his  use  the  pistol  of  stronger  trigger,  the  same 
witness  said,  "  he  seemed  agitated,  and  measured  the  ground 
in  his  direction  with  an  uneasy  and  anxious  tread."  But 
with  his  chosen  pistol  in  hand,  and  the  extremely  delicate 
and  dangerous  one  in  the  hands  of  his  opponent,  he  took 
his  position  with  firmness  and  composure,  watching  every 
movement  and  expression  of  his  adversary. 

In  Mr.  Brooks's  account  of  the  duel,  he  speaks  of  the 
appearance  of  the  antagonists,  after  they  had  taken  their  re 
spective  positions,  as  follows  :  "  At  that  time  Terry  appeared 
very  cool,  but  Broderick  showed  signs  of  nervousness.  When 
Colton  said,  '  Are  you  ready  ? '  Terry  replied  promptly  and 
clearly,  '  Ready.'  Broderick  delayed  a  few  moments,  while 
he  raised  and  lowered  his  pistol  arm,  seemingly  as  if  it  was 
cramped.  Then  he  answered,  '  Beady.' "  This  statement 
corroborates  the  accounts  of  others  as  to  the  character  of 
the  weapons,  and  Broderick's  inability  to  suit  his  hand  to 
the  pistol  which  he  was  to  use. 

From  the  beginning  of  the  correspondence  until  Broderick 
fell  mortally  wounded,  the  conduct  of  the  Terry  party  was 
distinguished  by  an  intensely  earnest  and  fiercely  aggres 
sive  spirit,  which  showed  them  bent  on  winning  the  fight,  at 
all  hazards.  The  deportment  of  Terry's  seconds  on  the 
ground  was  determined,  bold,  and  confident,  which  was  in 
marked  contrast  with  the  respectful  and  deferential  deport 
ment  of  Broderick's  friends,  in  the  presence  of  their  adver 
saries. 

When  the  respective  principals  had  taken  their  positions, 
as  yet  unarmed,  they  were  each  subjected  to  the*  customary 
examination  of  their  persons  for  concealed  armor.  McKib- 
ben's  office  was  to  examine  Terry,  and  that  of  Benham  was  to 
examine  Broderick.  Each  of  these  seconds  proceeded  to 
the  examination.  McKibben  approached  Terry  in  a  gentle 
and  respectful  manner,  pressed  the  back  of  his  hand  against 


24 

thelatter's  breast,  and  then  fell  back  with  a  courtly  bow  and  a 
wave  of  his  hand.  At  the  same  time,  Benham  was  manipu 
lating  and  searching  Broderick  up  and  down  his  person,  as 
if  he  verily  believed  he  had  upon  him  an  impenetrable  coat 
of  mail.  Broderick  was  greatly  disturbed  by  Benham's  con 
duct,  and  indignantly  said  to  a  friend  near  him  that  Benham 
had  treated  him  as  an  officer  with  a  search  warrant  would 
search  a  thief  for  stolen  property.  The  contrast  between 
the  conduct  of  McKibbeu  and  that  of  Benham  was  so  marked 
as  to  attract  the  notice  of  those  present.  Broderick's  friends 
felt  indignant  as  they  saw  him  thus  openly  insulted,  and 
those  of  them  still  living  well  remember  it  to  this  day.  The 
examination  of  Broderick's  person  being  finished,  Benham 
stepped  to  the  position  of  his  principal  and,  covering  the 
side  of  his  mouth  with  his  hand,  whispered  in  Terry's  ear, 
which  the  latter  seemingly  acknowledged  with  an  approving 
smile. 

Some  time  after  all  this,  Benham  acknowledged  to  a  friend 
of  Broderick,  who  took  exception  to  his  conduct  and  mode 
of  examination,  that  it  was  not  courteous,  but  excused  himself 
on  the  ground  that  his  principal's  life  was  in  his  keeping, 
and  he  was  bound  to  do  whatever  was  necessary  to  protect 
him. 

It  cannot  be  reasonably  claimed  that  there  could  be  any 
advantage  on  the  side  of  Terry  in  that  he  had  the  choice  of 
pistols,  provided  they  were  ordinary  duelling  pistols  and  in 
all  respects  alike,  and  equally  unknown  to  both  parties. 

It  is  said  by  those  who  have  seen  these  Aylette  pistols, 
that  in  stock  or  breech  construction  they  are  unlike  ordinary 
duelling  pistols,  and  the  manner  in  which  Broderick  scruti 
nized  and  handled  the  one  given  him,  and  his  efforts  to  fit 
his  hand  to  it,  was  evidence  that  he  was  wholly  unacquainted 
with  it.  On  the  other  hand,  the  manner  of  Terry  in  respect 
to  the  pistol  provided  for  his  service,  and  his  quiet  uncon 
cern  as  to  it  and  its  shooting  qualities,  was  evidence  that  he 
was  acquainted  with  both  of  them. 


25 

The  facts  and  circumstances  already  detailed,  together 
with  others  to  follow,  establish  to  a  moral  certainty  Terry's 
familiar  knowledge  of  the  weapons  selected  for  the  purpose 
of  the  duel,  and  also  Broderick's  entire  ignorance  respecting 
them,  until  the  one  provided  for  him  was  placed  in  his 
hands. 

It  is  susceptible  of  proof  that,  only  a  short  time  before 
the  Terry-Broderick  duel  was  fought,  Terry  and  Dr.  Aylette 
repaired  to  the  place  of  a  farmer  in  San  Joaquin  County, 
where  they  practised  shooting  at  a  mark  with  the  pistols  in 
question. 

Charles  C.  Knox,  for  many  years  a  business  man  in  Sacra 
mento,  states  that  Terry  had  in  his  possession  the  same  pistols 
while  a  Justice  of  the  Supreme  Court,  at  the  state  capitol, 
and  he  further  says  that  a  few  days  before  the  Terry-Brod 
erick  duel,  he  was  at  Haywards,  in  Alameda  County,  and 
while  there  the  stage  coach  arrived  on  its  way  from  Stockton 
to  Oakland,  with  Terry,  Dr.  Ash,  and  Dr.  Aylette  as  pas 
sengers.  At  Haywards  they  were  met  by  a  large  number 
of  their  friends,  who  had  come  in  several  carriages  from 
Oakland,  to  whom  Terry  and  his  travelling  companions  exhib 
ited  the  Aylette  pistols,  .and  then  they  were  given  in  charge 
of  some  one  or  more  of  their  Oakland  friends.  Mr.  Knox 
says  Mr.  Ha}rward,  the  landlord  of  the  place  bearing  his 
name,  asked  him  :  "  What  is  up  that  brings  together  such  a 
lot  of  Chivs  ?  " 

Dr.  Washington  M.  Ryer,  a  practising  physician  at  Stock 
ton  in  early  times,  says  Terry  was  in  the  habit  of  practising 
with  the  Aylette  pistols  at  his  place  in  Stockton,  in  1857. 

Terry's  friend,  Mr.  O'Meara,  states  that  Terry,  "  in  prepar 
ing  for  the  affair,  procured  at  Stockton  the  duelling  pistols 
owned  by  Jo  Beard,  ex- Clerk  of  the  Supreme  Court,  then  in 
the  possession  of  Dr.  Dan  Aylette,"  with  which  he  made 
"  two  shots,  hitting  each  time  below  the  target.  He  tried 
them  no  more."  Here  Mr.  O'Meara  admits  that  Terry  prac 
tised  with  the  pistols,  but  limits  his  practice  to  two  shots — no 


more.  How  he  became  so  exactly  informed  be  does  not 
explain.  He  speaks  with  the  positive  directness  of  one  who 
knows,  as  the  Fidus  Achates  of  Judge  Terry  in  all  bis  wan 
derings — his  watchful  attendant  in  all  his  secluded  retreats. 

Opposed  to  this  array  of  facts  and  circumstances  is  the 
statement  of  Mr.  Brooks,  in  his  account  of  the  Terry-Brod- 
erick  duel,  in  which  he  says :  "  The  pistols  selected  were  of 
the  duelling  pattern  and  belonged  to  Dr.  Aylette.  Terry 
was  no  better  acquainted  with  them  than  was  Broderick." 
How  Mr.  Brooks  is  able  to  state  so  positively  that  Terry 
was  no  better  acquainted  with  them  than  was  Broderick,  it 
is  not  easy  to  understand.  He  states  what  it  is  impossible 
for  him  to  know.  It  is  certain  that  the  testimony  of  wit 
nesses  to  facts  which  they  know,  is  of  more  value  than  the 
statement  of  one  who  merely  denies,  without  knowledge  of 
the  matter  of  which  he  speaks. 

The  evidence  already  produced  more  than  tends  to  show 
that  Terry  was  well  acquainted  with  the  Aylette  pistols,  by 
frequent  use  of  them  before  they  were  brought  into  requi 
sition  on  the  field  of  the  conflict.  Upon  this  point  it 
may  be  said  the  evidence  is  substantially  conclusive. 

From  what  the  gunsmith  testified  before  the  Coroner's 
jury,  there  is  no  doubt  respecting  the  dangerous  character 
of  the  weapons,  and  especially  of  the  one  appointed  to  the 
lot  of  Broderick. 

This  account  of  the  gunsmith  was  confirmed  by  what  Mr. 
Broderick  said  on  his  dying  bed,  as  appears  further  on. 

Mr.  O'Meara  says  the  pistols  in  question  had  been  used, 
before  the  Terry-Broderick  duel,  in  "  several  affairs  of 
honor ; "  that  they  "  were  so  exactly  alike  in  every  respect, 
that  no  difference  had  ever  been  discovered  in  their  shoot 
ing  qualities.  They  had  hair-triggers,  evenly  and  equally 
adjusted."  The  phrase  "  their  shooting  qualities  "  is  ambig 
uous.  That  their  hair-triggers  were  evenly  and  equally 
adjusted  is  not  sustained  by  the  established  facts.  It  is 


quite  certain  they  were  not  evenly  and  equally  adjusted  on 
the  morning  when  used  by  the  two  principals. 

The  next  day  after  the  duel  transpired,  the  pistol  which 
fell  to  the  lot  of  Broderick  came  into  the  possession  of  the 
Captain  of  the  Detective  force  of  the  police  department  of 
San  Francisco,  who  experimented  with  it  for  the  purpose  of 
testing  its  alleged  trigger  infirmity.  By  a  simple  experiment, 
he  demonstrated  its  extremely  dangerous  character  in  the 
hands  of  any  one  unaware  of  its  eccentricity.  With  the 
hammer  of  the  lock  set,  he  caused  it  to  spring  by  blowing 
vigorously  from  his  mouth  against  the  trigger.  The  success 
of  the  experiment  was  known  at  the  time,  and  can  now  be 
proved  by  the  Captain  himself,  who  is  still  in  the  possession 
and  enjoyment  of  a  strong  and  retentive  memory. 

The  peculiar  and  dangerous  qualities  of  the  respective 
weapons  had  been  known  for  several  years  before,  by  those 
acquainted  with  them. 

A  few  years  before  his  death,  Jo  Beard,  who  at  one  time 
owned  these  pistols,  told  his  friend  Frederick  H.  Water 
man,  now  residing  in  San  Francisco,  that  there  was  some 
thing  peculiar  about  these  pistols — that  they  were  not  alike 
— that  one  of  them  was  tricky,  but  the  other  was  a  lucky 
pistol  that  always  killed.  Jo  Beard  was  a  personal  friend 
of  Terry,  in  full  sympathy  with  his  pro-slavery  views. 

The  same  pistols  were  used  in  the  duel  between  Dr.  Wash 
ington  M.  Kyer  and  Dr.  George  Langdon,  which  occurred 
at  Stockton,  in  1857.  Dr.  Langdon,  the  challenged  party, 
chose  the  Aylette  pistols  for  the  conflict.  Each  took  one  of 
them  for  the  purpose  of  preparing  in  advance  for  the  duel. 
Dr.  Langdon  selected  for  his  use  the  weapon  of  stronger 
trigger.  Dr.  Kyer  was  then  ignorant  of  the  difference 
between  them.  In  practising  with  the  one  that  came  to  his 
hands  he  discovered  its  tricky  character,  but,  with  all  his 
care  in  guarding  against  its  eccentric  characteristics,  he  was 
unable  to  fully  overcome  it.  Afterwards,  on  the  field,  he  said 
that,  with  all  his  caution,  he  was  not  able  to  bring  his  pistol 


to  a  horizontal  position  before  it  became  discharged.  At  the 
third  round  he  succeeded  in  raising  it  as  high  as  the  knee 
of  his  adversary,  in  which  his  third  shot  took  effect  and  so 
ended  that  duel.  Dr.  Ryer  says  that  during  the  exchange 
of  shots,  the  bullets  from  the  pistol  of  Dr.  Langdon  whizzed 
unpleasantly  past  his  ear,  thus  showing  that  the  latter's 
pistol  was  not  afflicted  with  the  infirmity  peculiar  to  his 
own. 

Dr.  Langdon  was  one  of  what  was  known  at  that  day  as 
the  "  Stockton  Gang,"  at  the  head  of  which  stood  Terry  as 
its  acknowledged  leader. 

It  is  a  significant  fact  that,  in  the  cases  in  which  the  Ay- 
lette  pistols  were  called  into  requisition,  the  one  of  stronger 
trigger  was  always  found  in  the  hands  of  the  Terry  school 
of  duellists.  Terry  secured  it  in  the  duel  which  proved  so 
fatal  to  Broderick,  and  Dr.  Langdon  secured  it  in  the  duel 
with  Dr.  Ryer. 

Elliot  J.  Moore,  for  the  last  forty  years  a  resident  of  San 
Francisco,  a  lawyer  of  highly  reputable  standing,  and  in  early 
times  a  State  Senator  of  admittted  intelligence  and  integrity, 
was  an  intimate  friend  of  Broderick,  and  was  with  him  when 
the  duel  took  place.  He  remembers  the  incidents  of  that 
bloody  affair  with  a  vividness  which  the  lapse  of  time  can 
never  efface.  He  says  that  when  the  seconds  of  the  respec 
tive  principals,  and  others  with  them,  were  huddled  together 
selecting  pistols,  he  and  Broderick  were  together  some  dis 
tance  away.  When  Broderick  became  apprised  of  th^e  fact 
that  Terry's  seconds  had  brought  to  the  ground  a  pair  of 
duelling  pistols,  and  that  the  seconds  of  the  two  principals 
were  then  engaged  in  casting  lots  for  the  choice  of  weapons, 
he  seemed  uneasy  and  expressed  himself  as  not  being  able 
to  understand  how  it  was  that  the  armorer,  selected  by 
mutual  consent  of  the  parties,  and  then  standing  apart,  was 
not  consulted  but  seemed  to  be  entirely  ignored.  Broderick 
had  supposed  the  armorer  was  to  provide  the  weapons  for 
the  occasion.  He  complained  of  the  inefficiency  of  his 


29 

seconds,  who,  he  had  become  convinced,  were  not  the 
equals  of  the  seconds  of  his  adversary.  He  spoke  of  them 
as  children,  and  expressed  apprehensions  lest  they  might 
unwittingly  "trade  away  his  life." 

It  is  evident  that  Broderick  was  not  aware  of  Terry's  ac 
quaintance  by  practice  with  the  pistols  prior  to  the  duel. 
The  outspoken  suspicions  on  the  subject  were  withheld  from 
him  when  on  his  dying  bed.  His  experience  with  the  weapon 
placed  in  his  hands  was  to  him  a  surprise  and  disappointment; 
for,  while  conscious  that  he  could  not  recover,  he  told  his 
friend  Moore  that  he  did  not  touch  the  trigger  of  the  pistol 
as  he  raised  it,  but  that  the  sudden  movement  in  raising  it 
caused  it  to  explode  before  it  .was  brought  to  a  level. 

Jo  Beard's  confession,  the  gunsmith's  testimony,  Dr. 
Eyer's  statement,  Broderick's  dying  declaration,  and  the 
Detective  Captain's  experiment,  well  establish  the  anomalous 
trigger  qualities  of  the  weapons,  especially  as  to  the  one 
assigned  to  Broderick.  In  addition  to  this  direct  proof  are 
the  circumstances  of  the  production  and  selection  by  Terry 
and  his  friends  of  their  favorite  and  cherished  weapons,  and 
their  extreme  care  to  secure  the  safer  one  for  his  use. 

Terry's  friend,  Mr.  O'Meara,  states  the  fact  to  be  that  the 
respective  parties  mutually  agreed  upon  the  employment 
of  the  gunsmith  as  armorer  for  the  Terry-Broderick 
duel.  Of  this  fact  there  seems  no  reason  for  doubt. 
But  on  the  ground,  the  armorer  was  required  to  stand  aside, 
except  that  he  was  allowed  to  examine  the  pistols  chosen, 
and  to  load  the  one  handed  over  by  Terry's  seconds  for 
Broderick's  use. 

Col.  William  W.  Gift  was  a  Democrat,  reared  in  Tennessee 
under  the  immediate  influence  of  General  Andrew  Jackson. 
He  was  widely  known  in  California  for  his  peculiar  and 
forcible  modes  of  expressing  his  opinions.  Immediately 
after  Broderick  was  shot  down,  he  gave  vent  to  his  indigna 
tion,  and  denounced  in  strong  language  the  management  of 
the  Terry  party  in  their  introduction  and  selection  of  the 


30 

pistols  in  question  for  the  purposes  of  the  duel.  He  declared 
that  Terry  had  told  him  that  he  himself  owned  the  pistols. 
Col.  Gift  was  a  believer  in  the  Code,  but  regarded  it  as  a 
system  which  required  fair  and  equal  dealing  between 
parties  engaged  in  "  affairs  of  honor." 

The  facts  and  circumstances  of  the  choosing  of  the  Aylette 
pistols,  and  the  selecting  of  the  safer  one  for  Terry  and  the 
dangerous  one  for  Broderick,  as  the  same  became  known, 
caused  it  to  be  suspected  and  believed  by  the  people  that 
Broderick  had  fallen  the  victim  of  a  foul  conspiracy — that 
a  tricky  pistol  had  been  placed  in  his  grasp,  untutored  to  its 
eccentricity,  in  order  to  make  sure  of  his  discomfiture  in  an 
unequal  wager  of  battle. 

Indicative  of  the  general  suspicions,  the  following  inquiries 
were  publicly  made,  which  are  quoted  as  showing  the  gen 
eral  belief  that  then  prevailed. 

"  Why  was  the  duel  fought  with  Judge  Terry's  pistols  ?  " 

".Did  Broderick  or  his  seconds  know  they  were  the 
property  of  Judge  Terry  ?  " 

"  Was  either  of  the  pistols  so  arranged  as  to  go  off  with 
the  lesser  jar  or  shake  without  touching  the  trigger  ?  If  so, 
was  either  Mr.  Broderick  or  his  seconds  aware  of  it  ?  " 

"By  whom  were  the  pistols  selected,  or  were  they  fur 
nished  by  the  armorer  as  his  property  ?  " 

"Did  not  Judge  Terry  practise  with  these  pistols  within 
forty-eight  hours  of  the  time  of  Mr.  Broderick's  being  shot  ?  " 

These  inquiries  were  made  in  the  "  Alta,"  followed  by  a 
suggestion  in  the  nature  of  a  request,  in  these  words  :  "  Direct 
answers  to  these  questions  by  the  proper  parties  will  prove 
what  are  now  said  to  be  the  facts,  false  or  true."  At  this 
time  Mr.  Broderick  was  no  more. 

Terry  and  his  friends  did  not  deign  to  answer  these  ques 
tions.  McKibben  and  -Colton  had  already  said,  in  noticing 
an  article  in  the  San  Francisco  "  Herald  "  to  the  effect  that  one 
of  the  weapons  was  easier  on  the  trigger  than  the  other: 
"  Had  we  believed  there  was  any  unfairness,  there  could 


31 

have  been  DO  meeting."  But  the  armorer  testified  at  the 
Coroner's  inquest  that  the  pistols  were  extremely  light  and 
delicate  on  the  trigger,  and  that  he  so  informed  all  the  sec 
onds  when  he  examined  them  on  the  ground,  and  that  he 
told  one  of  Terry's  seconds  that  the  one  designed  for  Brod- 
erick  was  lighter  than  the  other. 

The  belief  which  so  greatly  obtained  immediately  after 
Broderick  was  shot,  that  he  had  fallen  the  victim  of  foul 
play,  has  remained  with  those  best  informed  on  the  subject 
even  to  the  present  time,  and  on  all  occasions  when  the  op 
portunity  occurred  to  give  expression  to  such  belief,  it  has 
been  manifested  in  a  pronounced  manner.  An  instance  of 
the  kind  occurred  at  the  presidential  election  in  1880,  when 
Terry  was  a  Democratic  candidate  for  presidential  elector. 
At  the  election  in  November  of  that  year,  all  the  Democratic 
candidates  were  chosen  except  Terry,  who  fell  behind  and 
was  defeated,  by  a  respectable  majority,  by  Henry  Edgerton, 
one  of  the  Kepublican  nominees  for  elector,  who,  in  the 
state  electoral  college,  cast  his  vote  for  Garfield  and  Arthur. 
Edgerton  was  an  anti-Lecompton  Democrat  in  1859,  and 
was  well  known  among  the  friends  of  Broderick  to  have  been 
in  sympathy  with  him.  The  friends  of  Broderick  remain 
ing  in  the  Democratic  party,  remembering  him  as  their  leader 
and  how  he  came  to  his  untimely  end,  would  not  tolerate 
Terry  as  worthy  to  express,  as  an  elector,  their  choice  for 
the  offices  of  President  and  Vice-President  of  the  United 
States. 

It  appears  beyond  question  that  Terry  possessed  a  great 
and  undue  advantage  over  Broderick  in  respect  to  the 
weapons  used.  He  had  had  long  and  familiar  acquaintance 
with  them,  while,  as  to  their  peculiar  qualities,  Broderick 
was  an  entire  stranger. 

It  has  been  claimed  by  some  that  Broderick  was  more 
expert  in  the  use  of  duelling  pistols  than  was  Terry.  If 
this  be  true,  the  result  of  the  hostile  meeting,  so  fatal  to 


32 

Broderick,  must  be  accounted  for  on  the  hypothesis  of 
some  undue  advantage  on  the  side  of  Terry. 

The  claim  that  Broderick  was  more  skilful  and  expert  in 
the  use  of  duelling  pistols  than  was  Terry,  cannot  be  affirmed 
by  those  acquainted  with  the  two  men.  Terry  was  known 
to  be  familiar  with,  and  ready  in  the  use  of,  such  weapons. 
Besides  this,  the  training  of  his  life  had  made  him  familiar 
with  duelling  weapons.  The  advantages  of  an  experience 
in  the  use  of  arms  were  clearly  on  his  side. 

The  environments  of  the  early  lives  of  the  respective 
parties  were  entirely  different.  The  one  had  spent  his 
youth  and  early  manhood  in  New  York,  where  the  use  of 
pistols  in  duelling  conflicts  was  unknown.  The  other  had 
spent  his  early  life  in  Texas,  famous  for  scenes  of  violence 
and  blood.  His  early  opportunities  gave  him  a  general  ex 
perience  in  affairs  of  violence  which  had  not  been  afforded 
to  Broderick. 

To  this  comparative  difference  Col.  Baker,  in  his  eloquent 
oration  at  Broderick's  funeral,  made  allusion.  He  said : 
"  The  Code  of  Honor  is  a  delusion  and  a  snare.  It  palters 
with  the  hope  of  a  true  courage,  and  binds  it  at  the  feet  of 
crafty  and  cruel  skill.  It  surrounds  its  victim  with  the 
pomp  and  grace  of  a  procession,  but  leaves  him  bleeding  on 
the  altar.  It  substitutes  cold  and  deliberate  preparation  for 
courageous  and  manly  impulse,  and  arms  the  one  to  disarm 
the  other.  It  may  prevent  fraud  among  practised  duellists, 
who  should  be  forever  without  its  pale,  but  it  makes  the 
mere  '  trick  of  the  weapon '  superior  to  the  noblest  cause 
and  truest  courage.  Its  pretence  of  equality  is  a  lie  ;  it  is 
equal  in  till  the  form,  it  is  unequal  in  all  the  substance.  The 
habitude  of  arms — the  early  training — the  frontier  life — the 
border  war — the  sectional  custom — the  life  of  leisure, — all 
these  are  advantages  which  no  negotiations  can  neutralize, 
and  which  no  courage  can  overcome." 

Here  it  is  to  be  noticed  that  the  orator's  mind  was  im 
pressed  with  the  prevailing  suspicions  and  beliefs,  as  he 


33 

spoke  of  "  cruel  and  crafty  skill " — of  the  "  substitution  of 
cold  and  deliberate  preparation  for  courageous  and  manly 
impulse  " — and  the  " '  mere  trick  of  the  weapon  '  superior  to 
the  noblest  cause  and  truest  courage." 

The  usual  answer  given  to  the  suggestion  that  Broderick 
was  overreached  and  defrauded  in  respect  to  the  weapons 
selected  for  the  duel  has  been,  that  his  seconds  must  be 
presumed  to  have  guarded  against  any  undue  advantage  in 
favor  of  his  adversary.  This,  at  most,  is  only  a  presumption 
which  is  disputable.  The  facts  and  circumstances  seem  to 
overthrow  any  such  presumption.  They  ought  to  have 
guarded  against  any  such  advantage.  But  their  failure  to 
do  so  cannot  be  tolerated  as  a  justification  or  excuse  for 
bringing  on  the  ground  weapons  of  the  dangerous  character 
of  the  Aylette  pistols,  with  which  Terry  was  familiar,  and 
Broderick  wholly  ignorant.  The  selection  of  those  pistols 
was  taking  an  undue  advantage  of  Broderick,  which  was 
intensified  by  the  selection  of  the  stronger  one  for  Terry 
and  the  weaker  one  for  Broderick. 

Mr.  Broderick  was  entitled  to  fair  dealing.  His  seconds 
ought  to  have  been  on  the  alert,  and  guarded  their  principal 
against  the  very  things  which  happened  so  greatly  to  the 
advantage  of  Terry,  and  to  the  disadvantage  of  Broderick, 
but  they  failed  to  do  so.  Were  they  overmatched  and  out 
done  by  the  seconds  of  Terry  ?  It  is  quite  manifest  they 
were.  They  were  inexperienced  in  matters  of  the  kind,  and 
evidently  supposed  the  affair  in  hand  an  "  affair  of  honor." 
They  ought  to  have  been  on  the  alert  and  attended  to  what 
the  gunsmith  told  them  as  to  the  dangerous  character  of  the 
weapons,  and  thus  been  able  to  defeat  the  strategic  circum 
ventions  of  their  principal's  adversaries.  This  opportunity 
was  lost,  and  as  a  consequence  all  was  lost.  They  probably 
were  without  suspicion  of  Terry's  advantage,  until  it  was  too 
late  to  repair  the  loss  to  their  principal. 

It  has  been  stated  in  several  of  the  published  accounts  of 
the  Terry-Broderick  duel,  that  McKibben  snapped  one  of 


34: 

the  Aylette  pistols  with  an  air  of  satisfaction  ;  but  this  is 
not  supported  by  the  testimony  of  the  living  witnesses.  If 
he  did,  then  which  of  the  pistols  did  he  snap  with  a  satis 
fied  air?  If  he  did  snap  one  of  them,  is  it  proof  that 
the  pistol  delivered  to  Broderick  for  use  was  not  extremely 
light,  and  dangerously  set  ?  The  armorer  said  it  was,  and  so 
light  that  it  would  explode  by  a  sudden  jar  or  jerk  ;  and  Mr. 
Broderick  declared  on  his  dying  bed  that,  without  his  touch 
ing  the  trigger,  it  did  explode  as  he  suddenly  raised  it. 

In  Maj.  Ben.  C.  Truman's  account  of  the  duel,  it  is  said, 
in  speaking  of  the  managing  friends  of  the  respective  prin 
cipals,  "  As  to  the  niceties  of  affairs  of  honor,  the  gentle 
men  who  assisted  Terry  were  much  superior  to  Broderick's 
friends ; "  and  in  speaking  of  their  bearing  and  conduct  on 
the  field,  it  is  further  said,  "  The  Terry  party  was  cool  and 
collected,  as  became  old  hands  at  the  business.  Mr.  Brod 
erick's  friends  were  apparently  nervous  and  hesitating." 
Their  nervous  and  disturbed  condition  may  account  for  their 
consenting  to  the  negotiations  by  which  the  Aylette  pistols 
were  allowed  to  be  introduced  for  choice,  and  for  their  failure, 
after  such  pistols  were  chosen  by  Terry,  to  attend  to  the 
warning  of  the  gunsmith  that  they  were  too  light  for  the 
purposes  of  the  duel,  and  also  for  their  failure  to  discover 
that  the  one  selected  by  Terry's  seconds  for  him  was  the 
stronger  and  safer  of  the  two,  and  that  the  one  handed  over 
for  Broderick's  use  was  so  light  and  delicate  as  to  be  dis 
charged  by  a  sudden  jar  or  jerk. 

The  evidence  as  to  the  dangerous  character  of  the  weapons 
and  the  more  dangerous  character  of  the  one  used  by  Brod 
erick,  is  the  sworn  testimony  of  the  gunsmith,  Legardo,  at 
the  Coroner's  inquest,  which  has  never  been  contradicted. 

The  evidence  relating  to  the  point  under  consideration 
is  both  direct  and  circumstantial,  and  from  it  the  conclu 
sion  follows  in  logical  sequence. 

The  great  and  fatal  mistake  of  Broderick's  seconds,  was 
in  submitting  to  a  negotiation  which  opened  the  door  to  the 


35 

selection  of  any  pistols  not  provided  by  the  armorer,  upon 
whom  the  respective  parties  had  mutually  agreed  for  the 
purpose.  The  arrangement  to  that  effect  operated  to  set 
aside  the  agreement  mutually  entered  into  to  employ  the 
gunsmith,  Legardo,  for  the  office  of  armorer.  The  death  of 
Mr.  Broderick,  it  is  believed  by  many,  was  the  consequence 
of  this  fatal  mistake. 

By  persistent  asseverations,  made  in  the  face  of  the  evi 
dence  to  the  contrary,  the  duel  has  been  represented  as  fair 
and  equal  in  all  respects,  and  Broderick's  seconds  have  con 
tributed  their  full  share  to  so  represent  it.  Perhaps  they 
thought  so ;  but  Broderick's  friends  have  ever,  with  great 
unanimity,  thought  otherwise. 

The  personal  treatment  of  Broderick  from  the  beginning  to 
the  end  by  his  antagonist  and  his  second,  Benham,  in  arous 
ing  him  from  his  sleep  at  the  house  of  his  friend  at  the  dead 
hour  of  the  night,  and  the  mode  and  manner  of  the  exami 
nation  of  his  person  on  the  field  of  the  conflict,  seemed 
designed  to  worry  and  wear  him  out,  and  to  unnerve  and 
unfit  him  for  the  ordeal  in  prospect.  Added  to  such  treat 
ment,  the  introduction  on  the  ground  of  the  Aylette  pistols, 
and  their  selection  and  distribution  for  the  work  in  hand, 
made  sure  of  Broderick's  discomfiture  and  death. 

All  the  facts  and  circumstances  considered,  the  following 
questions  are  propounded  : 

Was  there  any  just  or  sufficient  cause,  under  the  Code,  for 
the  challenge  by  Terry  to  Broderick  ? 

Which  of  the  two  was  the  first  to  give  offence  to  the  other, 
and  which  was  bound  in  honor  to  make  apology  and  repara 
tion  to  the  other  ? 

Were  the  Aylette  pistols  proper  duelling  weapons  for  the 
purposes  of  the  Terry-Broderick  duel  ? 

Were  they  unsafe  #nd  dangerous  weapons  in  the  hands  of 
a  stranger  to  their  peculiar  characteristics  ? 

Was  Terry  familiar  with  them,  by  actual  experience,  within 
a  short  time  before  the  duel  ? 


36 

Was  Broderick  acquainted  with  them,  or  was  he  entirely 
ignorant  respecting  their  peculiar  qualities  ? 

Did  Terry  secure  for  his  use  the  safer  pistol  of  the  two, 
knowing  the  character  of  both  ? 

Was  the  pistol  given  to  Broderick  for  his  use  a  particu 
larly  dangerous  weapon,  and  were  Terry  and  his  aiding 
friends  aware  of  such  fact  ? 

Were  Terry's  friends  aware  of  the  facts  and  circumstances 
relating  to  the  character  of  the  pistols,  and  of  the  difference 
between  them  ? 

Were  the  facts  in  respect  to  Terry's  acquaintance  with 
and  experimental  knowledge  of  the  pistols,  concealed  by  him 
and  his  friends  from  Broderick  and  his  friends  ? 

Truthful  answers  to  these  questions  will  constitute  a  true 
verdict  according  to  the  evidence,  on  which  judgment  must 
be  pronounced,  declaring  who  was  responsible  for  the  un 
timely  death  of  David  C.  Broderick — who  answerable  for 
the  deep  damnation  of  his  taking  off. 

SAN  FRANCISCO, ,  1890. 


ORATION 


OF 


COLONEL   EDWARD   D.  BAKER 


OVEK  THE  DEAD  BODY  OF 


DAVID    C.    BRODERICK, 


A   SENATOR   OF   THE   UNITED   STATES, 


DELIVERED  ON  SEPTEMBER  18TH,  1859, 


David  C.  Broderick  was  shot  in  a  duel  on  the  thirteenth  of 
September,  1859,  and  died  three  days  thereafter,  on  the  six 
teenth.  The  challenging  party  was  David  S.  Terry,  who,  five 
days  prior  to  the  meeting,  resigned  his  office  as  Chief-Justice 
of  California — having  then  but  a  few  weeks  to  serve.  The 
funeral  service  was  held  in  the  plaza  of  San  Francisco,  on 
Sunday  the  eighteenth,  when  Colonel  Baker,  standing  by  the 
open  coffin,  delivered  the  following  address.  It  was  heard  by 
a  very  large  concourse  of  people  and  produced  a  great  effect. 
It  is  now  reprinted  in  the  hope  of  preserving  a  worthy  memo 
rial  of  two  eminent  persons — Senator  Broderick  and  Colonel 
Edward  D.  Baker,  some  time  Senator  from  Oregon,  and  an 
early  victim  of  the  causeless  Rebellion. 


CITIZENS  OF  CALIFORNIA:  A  Senator  lies  dead  in  our 
midst.  He  is  wrapped  in  a  bloody  shroud,  and  we,  to  whom 
his  toils  and  cares  were  given,  are  about  to  bear  him  to  the 
place  appointed  for  all  the  living.  It  is  not  fit  that  such  a 
man  should  pass  to  the  tomb  unheralded  ;  it  is  not  fit  that 
such  a  life  should  steal  away  unnoticed  to  its  close  ;  it  is 
not  fit  that  such  a  death  should  call  forth  no  rebuke,  or  be 
surrounded  by  no  public  lamentation.  It  is  this  conviction 
which  impels  the  gathering  of  this  assemblage.  We  are 
here  of  every  station  and  pursuit,  of  every  creed  and  char 
acter,  each  in  his  capacity  of  citizen,  to  swell  the  mournful 
tribute  which  the  majesty  of  the  people  offers  to  the  unre- 
plying  dead.  He  lies  to-day  surrounded  by  little  of  funeral 
pomp.  No  banners  droop  above  the  bier ;  no  melancholy 
music  floats  upon  the  reluctant  air.  The  hopes  of  high 
hearted  friends  droop  like  the  fading  flowers  upon  his  breast, 
and  the  struggling  sigh  compels  the  tear  in  eyes  that 
seldom  weep.  Around  him  are  those  who  have  known  him 
best  and  loved  him  longest ;  who  have  shared  the  triumph 
and  endured  the  defeat.  Near  him  are  the  gravest  and 
noblest  of  the  State,  possessed  by  a  grief  at  once  earnest 
and  sincere ;  while  beyond,  the  masses  of  the  people,  whom 
he  loved  and  for  whom  his  life  was  given,  gather  like  a 
thunder-cloud  of  swelling  and  indignant  grief.  In  such  a 
presence,  fellow-citizens,  let  us  linger  for  a  moment  at  the 
portals  of  the  tomb,  whose  shadowy  arches  vibrate  to  the 
public  heart,  to  speak  a  few  brief  words  of  the  man,  of  his 
life,  and  of  his  death. 

Mr.  Broderick  was  born  in  the  District  of  Columbia  in 
1819  ;  he  was  of  Irish  descent  and  of  respectable  though 
obscure  parentage ;  he  had  little  of  early  advantages,  and 
never  summoned  to  his  aid  a  complete  and  finished  educa 
tion.  His  boyhood — as,  indeed,  his  early  manhood — was 
passed  in  the  City  of  New  York,  and  the  loss  of  his  father 


42 

early  stimulated  him  to  the  efforts  which  maintained  his 
surviving  mother  and  brother,  and  served  also  to  fix  and 
form  his  character  even  in  his  boyhood.  His  love  for  his 
mother  was  his  first  and  most  distinctive  trait  of  character ; 
and  when  his  brother  died — an  early  and  sudden  death — 
the  shock  gave  a  serious  and  reflective  cast  to  his  habits 
and  his  thoughts,  which  marked  them  to  the  last  hour  of 
his  life. 

He  was  always  filled  with  pride  and  energy  and  ambi 
tion  ;  his  pride  was  in  the  manliness  and  force  of  his  char 
acter,  and  no  man  had  more  reason.  His  energy  was 
manifest  in  the  most  resolute  struggles  with  poverty  and 
obscurity,  and  his  ambition  impelled  him  to  seek  a  foremost 
place  in  the  great  race  for  honorable  power.  Up  to  the 
time  of  his  arrival  in  California,  his  life  had  been  passed 
amid  events  incident  to  such  a  character.  Fearless,  self- 
reliant,  open  in  his  enmities,  warm  in  his  friendships, 
wedded  to  his  opinion,  and  marching  directly  to  his  purpose 
through  and  over  all  opposition,  his  career  was  chequered 
with  success  and  defeat.  But  even  in  defeat  his  energies 
were  strengthened  and  his  character  developed.  When  he 
reached  these  shores  his  keen  observation  taught  him  at 
once  that  he  trod  a  broad  field,  and  that  a  higher  career 
was  before  him.  He  had  no  false  pride — sprung  from  a 
people  and  of  a  race  whose  vocation  was  labor,  he  toiled 
with  his  own  hands  and  sprang  at  a  bound  from  the  work 
shop  to  the  legislative  hall.  From  that  hour  there  congre 
gated  around  him  and  against  him  the  elements  of  success 
and  defeat.  Strong  friendships,  bitter  enmities,  high  praise, 
malignant  calumnies ;  but  he  trod  with  a  free  and  a  proud 
step  that  onward  path  which  has  led  him  to  glory  and  the 
grave. 

It  would  be  idle  for  me  at  this  hour,  and  in  this  place,  to 
speak  of  all  that  history  with  unmitigated  praise ;  it  will  be 
idle  for  his  enemies  hereafter  to  deny  his  claim  to  noble 
virtues  and  high  purposes.  When,  in  the  Legislature,  he 


43 

boldly  denounced  the  special  legislation  which  is  the  curse 
of  a  new  country,  he  proved  his  courage  and  his  rectitude. 
When  he  opposed  the  various  and  sometimes  successful 
schemes  to  strike  out  the  salutary  provisions  of  the  consti 
tution  which  guarded  free  labor,  he  was  true  to  all  the  better 
instincts  of  his  life.  When,  prompted  by  his  ambition  and 
the  admiration  of  his  friends,  he  first  sought  a  seat  in  the 
Senate  of  the  United  States,  he  sought  the  highest  of  all 
positions  by  legitimate  effort,  and  failed  with  honor.  It  is 
mv  duty  to  say  that,  in  my  judgment,  when,  at  a  later  period, 
he  sought  to  anticipate  the  Senatorial  election,  he  committed 
an  error,  which,  I  think,  he  lived  to  regret.  It  would  have 
been  a  violation  of  the  true  principles  of  representative  gov 
ernment,  which  no  reason,  public  or  private,  could  justify, 
and  could  never  have  met  the  permanent  approval  of  good 
and  wise  men.  Yet,  while  I  say  this  over  his  bier,  let  me 
remind  you  of  the  temptation  to  such  an  error,  of  the  plans 
and  the  reasons  which  prompted  it,  of  the  many  good  pur 
poses  it  was  intended  to  effect.  And  if  ambition,  "the  last 
infirmity  of  noble  minds,"  led  him  for  a  moment  from  the 
better  path,  let  me  remind  you  how  nobly  he  retained  it.  UBRAR/ 

It  is  impossible  to  speak,  within  the  limits  of  this  address, 
of  the  events  of  that  session  of  the  Legislature  at  which  he 
was  elected  to  the  Senate  of  the  United  States  ;  but  some 
things  should  not  be  passed  in  silence  here.  The  contest 
between  himself  and  the  present  Senator  had  been  bitter 
and  personal.  He  had  triumphed  ;  he  had  been  wonderfully 
sustained  by  his  friends,  and  stood  confessedly  "  the  first  in 
honor  and  the  first  in  place."  He  yielded  to  an  appeal  made 
to  his  magnanimity  by  his  foe.  If  he  judged  unwisely,  he 
has  paid  the  forfeit  well.  Never  in  the  history  of  political  * 
warfare  has  any  man  been  so  pursued.  Never  has  malignity 
so  exhausted  itself.  Fellow-citizens,  the  man  who  lies  before 
you  was  your  Senator.  From  the  moment  of  his  election, 
his  character  has  been  maligned,  his  motives  attacked,  his 
courage  impeached,  his  patriotism  assailed.  It  has  been  a 


4A 

system  tending  to  one  end,  and  the  end  is  here.  What  was 
bis  crime  ?  Keview  his  history — consider  his  public  acts — 
weigh  his  private  character — and  before  the  grave  encloses 
him  forever,  judge  between  him  and  his  enemies.  As  a  man 
to  be  judged  in  his  private  relations,  who  was  his  superior  ? 
It  was  his  boast — and  amid  the  general  license  of  a  new 
country  it  was  a  proud  one — that  his  most  scrutinizing  enemy 
could  fix  no  single  act  of  immorality  upon  him.  Temperate, 
decorous,  self-restrained,  he  had  passed  through  all  the 
excitements  of  California  unstained.  No  man  could  charge 
him  with  broken  faith  or  violated  trust.  Of  habits  simple 
and  inexpensive,  he  had  no  lust  of  gain.  He  overreached 
no  man's  weakness  in  a  bargain,  and  withheld  no  man  his 
just  due.  Never,  in  the  history  of  the  State,  has  there  been 
a  citizen  who  has  borne  public  relations  more  stainless  in 
all  respects  than  he.  But  it  is  not  by  this  standard  he  is  to 
be  judged.  He  was  a  public  man,  and  his  memory  demands 
a  public  judgment.  What  was  his  public  crime?  The 
answer  is  in  his  own  words :  "  They  have  killed  me  because 
I  was  opposed  to  the  extension  of  slavery  and  a  corrupt  Ad 
ministration."  Fellow-citizens,  they  are  remarkable  words, 
uttered  at  a  very  remarkable  moment ;  they  involve  the 
history  of  his  Senatorial  career,  and  of  its  sad  and  bloody 
termination.  When  Mr.  Broderick  entered  the  Senate  he 
had  been  elected  at  the  beginning  of  a  Presidential  term,  as 
a  friend  of  the  President-elect,  having  undoubtedly  been  one 
of  his  most  influential  supporters.  There  were  unquestion 
ably  some  things  in  the  exercise  of  the  appointing  power 
which  he  could  have  wished  otherwise ;  but  he  had  every 
reason  with  the  Administration  which  could  be  supposed  to 
weigh  with  a  man  in  his  position.  He  had  heartily  main 
tained  the  doctrine  of  popular  sovereignty  as  set  forth  in 
the  Cincinnati  platform,  and  he  never  wavered  in  its  support 
till  the  day  of  his  death.  But  when  in  his  judgment  the 
President  betrayed  his  obligations  to  the  party  and  the 
country — when,  in  the  whole  series  of  acts  in  relation  to 


45 

Kansas,  he  proved  recreant  to  his  pledges  and  instructions ; 
when  the  whole  power  of  the  Administration  was  brought  to 
bear  upon  the  legislative  branch  of  the  Government  in  order 
to  force  slavery  upon  an  unwilling  people,  then  in  the  high 
performance  of  his  .duty  as  a  Senator,  he  rebuked  the  Ad 
ministration  by  his  voice  and  his  vote,  and  stood  by  his 
principles.  It  is  true  he  adopted  no  half-way  measures. 
He  threw  the  whole  weight  of  his  character  into  the  ranks 
of  the  opposition  ;  he  endeavored  to  rouse  the  people  to  an 
indignant  sense  of  the  iniquitous  tyranny  of  the  Federal 
power,  and  kindling  with  the  contest,  became  its  fiercest  and 
firmest  opponent. 

Fellow-citizens,  whatever  may  have  been  your  political 
predilections,  it  is  impossible  to  repress  your  admiration  as 
you  review  the  conduct  of  the  man  who  lies  hushed  in  death 
before  you.  You  read  in  his  history  a  glorious  imitation  of 
the  great  popular  leaders  who  opposed  the  despotic  influ 
ence  of  power  in  other  lands  and  in  our  own.  When  John 
Hampden  died  at  Chalgrove  Field  he  sealed  his  devotion  to 
popular  liberty  with  his  blood.  The  eloquence  of  Fox  found 
the  sources  of  its  inspiration  in  his  love  of  the  people. 
When  Senators  conspired  against  Tiberius  Gracchus  and 
the  Tribune  of  the  people  fell  beneath  their  daggers,  it  was 
power  that  prompted  the  crime  and  demanded  the  sacrifice. 
Who  can  doubt  if  your  Senator  had  surrendered  his  free 
thoughts  and  bent  in  submission  to  the  rule  of  the  Admin 
istration — who  can  doubt  that  instead  of  resting  on  a  bloody 
bier,  he  would  this  day  have  been  reposing  in  the  inglorious 
felicitude  of  Presidential  sunshine  ? 

Fellow-citizens,  let  no  man  suppose  that  the  death  of  the 
eminent  citizen  of  whom  I  speak  was  caused  by  any  other 
reason  than  that  to  which  his  own  words  assign  it.  It  had 
been  long  foreshadowed.  It  was  predicted  by  his  friends ; 
it  was  threatened  by  his  enemies  ;  it  was  the  consequence  of 
intense  political  hatred.  His  death  was  a  political  necessity, 
poorly  veiled  under  the  guise  of  a  private  quarrel.  Here,  in 


4:6 

his  own  State,  among  those  who  witnessed  the  late  canvass, 
who  knew  the  contending  leaders — among  those  who  knew 
the  antagonists  on  the  bloody  ground,  here  the  public  con 
viction  is  so  thoroughly  settled  that  nothing  need  be  said. 
Tested  by  the  correspondence  itself,  there  was  no  cause  in 
morals,  in  honor,  in  taste,  by  any  code — by  the  custom  of  any 
civilized  land,  there  was  no  cause  for  blood.  Let  me  repeat  the 
story  ;  it  is  as  brief  as  it  is  fatal :  A  judge  of  the  Supreme 
Court  descends  into  a  political  convention — it  is  just,  however, 
to  say  that  the  occasion  was  to  return  thanks  to  his  friends 
for  an  unsuccessful  support ;  in  a  speech  bitter  and  personal 
he  stigmatized  Senator  Broderick  and  all  his  friends  in 
words  of  contemptuous  insult.  When  Mr.  Broderick  saw 
that  speech  he  retorted,  saying,  in  substance,  that  he  had 
heretofore  spoken  of  Judge  Terry  as  an  honest  man,  but 
that  he  now  took  it  back.  When  inquired  of,  he  admitted 
that  he  had  so  said,  and  connected  his  words  with  Judge 
Terry's  speech  as  prompting  them.  So  far  as  Judge  Terry 
personally  was  concerned,  this  was  the  cause  of  mortal  com 
bat  ;  there  was  no  other.  In  the  contest  which  has  just 
terminated  in  the  State,  Mr.  Broderick  had  taken  a  leading 
part ;  he  had  been  engaged  in  controversies  very  personal 
in  their  nature,  because  the  subjects  of  public  discussion 
had  involved  the  character  and  conduct  of  many  public  and 
distinguished  men.  But  Judge  Terry  was  not  one  of  these. 
He  was  no  contestant ;  his  conduct  was  not  in  issue  ;  he 
had  been  mentioned  but  once  incidentally — in  reply  to  his 
own  attack — and,  except  as  it  might  be  found  in  his  peculiar 
traits  or  peculiar  fitness,  there  was  no  reason  to  suppose 
that  he  would  seek  any  man's  blood.  When  William  of 
Nassau,  the  deliverer  of  Holland,  died  in  the  presence  of  his 
wife  and  children,  the  hand  that  struck  the  blow  was  not 
nerved  by  private  vengeance.  When  the  fourth  Henry 
passed  unharmed  amid  the  dangers  of  the  field  of  Ivry,  to 
perish  in  the  streets  of  his  capital  by  the  hand  of  a  fanatic, 
he  did  not  seek  to  avenge  a  private  grief.  An  exaggerated 


47 

sense  of  personal  honor— a  weak  mind  with  choleric  pas 
sions,  intense  sectional  prejudice,  united  with  great  confi 
dence  in  the  use  of  arms — these  sometimes  serve  to  stimulate 
the  instruments  which  accomplish  the  deepest  and  deadliest 
purpose. 

Fellow-citizens !  one  year  ago  I  performed  a  duty  such  as 
I  perform  to-day  over  the  remains  of  Senator  Ferguson, 
who  died  as  Broderick  died,  tangled  in  the  meshes  of  the 
code  of  honor.  To-day  there  is  another  and  more  eminent 
sacrifice.  To-day  I  renew  my  protest ;  to-day  I  utter  yours. 
The  code  of  honor  is  a  delusion  and  a  snare  ;  it  palters  with 
the  hope  of  a  true  courage,  and  binds  it  at  the  feet  of  crafty 
and  cruel  skill.  It  surrounds  its  victim  with  the  pomp  and 
grace  of  the  procession,  but  leaves  him  bleeding  on  the 
altar.  It  substitutes  cold  and  deliberate  preparation  for 
courageous  and  manly  impulse,  and  arms  the  one  to  disarm 
the  other ;  it  may  prevent  fraud  between  practised  duellists 
who  should  be  forever  without  its  pale,  but  it  makes  the 
mere  "  trick  of  the  weapon  "  superior  to  the  noblest  cause 
and  the  truest  courage.  Its  pretence  of  equality  is  a  lie ;  it 
is  equal  in  all  the  form,  it  is  unequal  in  all  the  substance — the 
habitude  of  arms,  the  early  training,  the  frontier  life,  the 
border  war,  the  sectional  custom,  the  life  of  leisure — all 
these  are  advantages  which  no  negotiations  can  neutralize, 
and  which  no  courage  can  overcome.  But,  fellow-citizens, 
the  protest  is  not  only  spoken  in  your  words  and  mine — it 
is  written  in  indelible  characters  ;  it  is  written  in  the  blood  of 
Gilbert,  in  the  blood  of  Ferguson,  in  the  blood  of  Broderick, 
and  the  inscription  will  not  altogether  fade.  With  the  ad 
ministration  of  the  code  in  this  particular  case  I  am  not 
here  to  deal.  Amid  passionate  grief  let  us  strive  to  be  just. 
I  give  no  currency  to  rumors  of  which  personally  I  know 
nothing ;  there  are  other  tribunals  to  which  they  may  well 
be  referred,  and  this  is  not  one  of  them ;  but  I  am  here  to 
say  that  whatever  in  the  code  of  honor  or  out  of  it  demands 
or  allows  a  deadly  combat,  where  there  is  not  in  all  things 


48 

entire  and  certain  equality,  is  a  prostitution  of  the  name,  is 
an  evasion  of  the  substance,  and  is  a  shield  blazoned  with 
the  name  of  chivalry  to  cover  the  malignity  of  murder. 

And  now  the  shadows  turn  toward  the  East,  and  we 
prepare  to  bear  these  poor  remains  to  their  silent  resting- 
place.  Let  us  not  seek  to  repress  the  generous  pride 
which  prompts  a  recital  of  noble  deeds  and  manly  vir 
tues.  He  rose  unaided  and  alone ;  he  began  his  career 
without  family  or  fortune,  in  the  face  of  difficulties ;  he 
inherited  poverty  and  obscurity ;  he  died  a  Senator  in 
Congress,  having  written  his  name  in  the  history  of 
the  great  struggle  for  the  rights  of  the  people  against  the 
despotism  of  organization  and  the  corruption  of  power.  He 
leaves  in  the  hearts  of  his  friends  the  tenderest  and  the 
proudest  recollections.  He  was  honest,  faithful,  earnest, 
sincere,  generous,  and  brave ;  he  felt  in  all  the  great  crises 
of  his  life  that  he  was  a  leader  in  the  ranks,  and  for  the  rights 
of  the  masses  of  men,  and  he  could  not  falter.  When  he  re 
turned  from  that  fatal  field,  while  the  dark  wing  of  the 
archangel  of  death  was  casting  its  shadows  upon  his  brow, 
his  greatest  anxiety  was  as  to  the  performance  of  his  duty. 
He  felt  that  all  his  strength  and  all  his  life  belonged  to  the 
cause  to  which  he  had  devoted  them.  "  Baker,"  said  he — and 
to  me  they  were  his  last  words — "  Baker,  when  I  was  struck, 
I  tried  to  stand  firm,  but  the  blow  blinded  me,  and  I  could 
not."  I  trust  that  it  is  no  shame  to  my  manhood  that  tears 
blinded  me  as  he  said  it.  Of  his  last  hours  I  have  no  heart 
to  speak.  He  was  the  last  of  his  race  ;  there  was  no  kindred 
hand  to  smooth  his  couch,  or  wipe  the  death-damps  from  his 
brow ;  but  around  that  dying  bed  strong  men,  the  friends  of 
early  manhood,  the  devoted  adherents  of  later  life,  bowed  in 
irrepressible  grief,  and  lifted  up  their  voices  and  wept. 

But,  fellow-citizens,  the  voice  of  lamentation  is  not  uttered 
by  private  friendship  alone — the  blow  that  struck  his  manly 
breast  has  touched  the  heart  of  a  people,  and  as  the  sad 
tidings  spread  a  general  gloom  prevails.  Who  now  can 


49 

speak  for  California  ?  Who  can  be  the  interpreter  of  the 
wants  of  the  Pacific  coast  ?  Who  can  appeal  to  the  com 
munities  of  the  Atlantic,  who  love  free  labor  ?  Who  can 
speak  for  the  masses  of  men,  with  a  passionate  love  for  the 
classes  from  whence  he  sprung  ?  Who  can  defy  the  blan 
dishments  of  power,  the  indolence  of  office,  the  corruption 
of  administrations  ?  What  hopes  are  buried  with  him  in 
the  grave  ? 

"Ah !  who  that  gallant  spirit  shall  resume, 
Leap  from  Eurotas'  bank  and  call  us  from  the  tomb  ?  " 

But  the  last  word  must  be  spoken,  and  the  imperious  man 
date  of  death  must  be  fulfilled.  Thus,  O  brave  heart,  we 
bear  thee  to  thy  rest !  Thus,  surrounded  by  tens  of  thou 
sands,  we  leave  thee  to  the  equal  grave.  As  in  life  no  other 
voice  among  us  so  rang  its  trumpet-blast  upon  the  ear  of 
freemen,  so  in  death  its  echoes  will  reverberate  amid  our 
mountains  and  valleys,  until  truth  and  valor  cease  to  appeal 
to  the  human  heart. 

"  His  love  of  truth — too  warm,  too  strong, 

For  hope  or  fear  to  chain  or  chill, 
His  hate  of  tyranny  and  wrong 

Burn  in  the  breasts  he  kindled  still." 

Good  friend  !  true  hero !  hail  and  farewell. 


